Albany Times Union: 20 State Senators: Avoid Repeat Of DiFiore Tenure

Originally published in Albany Times Union on September 06, 2022.

Gianaris among those speaking out on new chief judge selection

ALBANY - In sharp criticism of former Chief Judge Janet DiFiore and three other judges on New York's top court, 20 state senators have asked a judicial screening panel to consider finalists to succeed DiFiore that are nothing like her.

 "By all accounts, Janet DiFiore was the worst chief judge in the modern era," the Senate's deputy leader, Michael Gianaris, told the Times Union in a phone interview Tuesday. "We want to make sure we don't want to get a repeat of a tenure that has sullied the reputation of the state's highest court."

Gianaris, D-Queens, and Sen. Brad Hoylman, a Manhattan Democrat who chairs the Senate judiciary committee, were the most prominent names on the Aug. 30 letter to the state's Commission on Judicial Nomination, which screens Court of Appeals candidates when vacancies arise.  The commission sends sitting governors lists of seven finalists. The governor, by law, must choose one candidate.

 

 

Gov. Kathy Hochul was sent a copy of the letter, which was signed by, among others, Sen. Neil Breslin, an Albany County Democrat.

"In order to preserve our state’s balance of powers, it is imperative that the next chief judge not be beholden to any of the state’s political power brokers but instead be wholly committed to advancing impartial justice for all," the letter said.  "New Yorkers deserve a judiciary that can be trusted to be an honest broker of impeccable integrity, and we encourage the commission to select candidates accordingly."

It said past lists for chief judge have "regrettably fallen far short" in candidates who are qualified and of a diverse background in race, gender, religion, sexual orientation, community service, as well as the nature of their legal practice and geography. The letter said in 2016, when the commission chose seven finalists, including DiFiore, the list included three long-time prosecutors, three partners at large commercial firms and a former administrative judge but no civil rights attorneys, public defenders or tenant advocates.

In the wake of DiFiore's retirement as of Aug. 31, the commission is assembling a list of potential replacements that must be sent to Hochul by Nov. 25.

E. Leo Milonas, who chairs the Commission on Judicial Nomination, issued a statement to the Times Union stating that the commission "appreciates all suggestions regarding the need for a diverse judiciary," including the attributes mentioned in the letter. 

"We have realized this goal by producing numerous diverse lists of nominees from which governors have made their appointments to the court,” Milonas said.

New York chief judges lead the Court of Appeals and set policy for the court system. DiFiore, 67, a Democrat and the former Westchester County district attorney, led the court system through the pandemic and criminal justice reforms. She has said serving as chief judge was the "highest honor and the greatest privilege of my professional career" but did not cite a specific reason for her departure.

 In a phone interview, Gianaris not-so-subtly criticized associate judges Michael Garcia, Madeline Singas and Anthony Cannataro. In more than 60 decisions this year, the quartet voted together without a single dissent.  The four judges were considered a more conservative voting bloc than associate judges Jenny Rivera and Rowan Wilson. Associate Judge Shirley Troutman, the sole judge appointed by Hochul, has been more of a swing vote. 

Garcia is the sole Republican on the court; the others are Democrats.

"The Court of Appeals was once esteemed across the country as a very reputable court and ... it has lost that stature," Gianaris said.  "Janet DiFiore and her three acolytes on the court have done a real disservice to the judiciary."

Gianaris said the Court of Appeals "has been damaged by the work of four judges - one of whom has just retired." 

In April,  DiFiore, Garcia, Singas and Cannataro voted in a 4-3 decision to block a Senate Democrat-backed redistricting plan to carve new boundaries for state Senate and congressional districts. Gianaris was instrumental in the plan that was thwarted by the court. Asked if it played a factor in the Senate criticism of DiFiore, Gianaris said: "That decision has been made. We're living with it and will be fine."

Gianaris criticized the Court of Appeals for taking a far lighter caseload under DiFiore than under her predecessor, Jonathan Lippman, and rulings he said favored the rights of  '"wealthy and powerful interests" such as employers over employees, landlords over tenants and law enforcement over the accused.

"It has really taken a sharp right turn from the court that we knew and loved," said Gianaris, adding that the Senate, which confirms nominees to the Court of Appeals, was anxious to more deeply scrutinize future selections.

Through a spokesperson, DiFiore declined comment. The Court of Appeals also declined comment.

Michael Cardozo, the New York City corporation counsel for all 12 years of Mayor Michael Bloomberg's tenure and a former New York City Bar Association president, strongly defended DiFiore. Cardozo, an attorney for 56 years who helped draft the 1977 constitutional amendment that created the Commission on Judicial Nomination, said the Senate's letter ignored the role of a chief judge in selecting an at-will administrator to run the court system on a day-to-day basis. 

And Cardozo said the judiciary is not supposed to be a political institution comprised of conservatives or liberals but the most qualified judges.  He said nothing is wrong with Court of Appeals judges who vote the same way.

"There will be dissents from time to time on any court, but you want them to strive to have a consensus," Cardozo said. "You don't want them deciding based upon what the Republicans think or the Democrats think or the right wing thinks or the left wing thinks ...what we want is the most competent person who is not only a great jurist but has the ability to lead, to hopefully forge a consensus to make the court decide on the merits of a case, not on the politics of a case. That's what's not happening in Washington."

Until a new chief judge is nominated and confirmed, Cannataro is acting chief judge. Gary Spencer, a spokesman for the Court of Appeals, said Cannataro was designated in a vote. He declined to elaborate, when asked, saying the court does not reveal what takes place in conference. Spencer declined to respond to Gianaris' criticism of the judges. A spokesman for the state court system did not comment.

Vincent Bonventre, an Albany Law School professor and Court of Appeals expert, said the role of acting chief judge traditionally has fallen to the most senior judge on the court. Cannataro, the second openly gay member of the Court of Appeals, has less seniority than Rivera, Garcia and Wilson, all of whom are judges of color, as well as Singas.

Bonventre said the Court of Appeals has "taken a hit" in recent years. Still, Bonventre said he did not believe criticism for those moves should land on DiFiore. He said the nominating commission has suggested highly qualified candidates that were passed over by former Gov. Andrew Cuomo. 

Bonventre said Gianaris was "not saying anything that many others aren't saying as well," adding, "But most others are saying it in quiet confidential conversations."

Read the full Times Union story here.