In a surprising announcement, New York Chief Judge Janet DiFiore revealed that she would resign from her middle seat on the Court of Appeals bench three years before she would have been forced into mandatory retirement. When the Chief Judge steps out of Court of Appeals Hall on August 31, 2022, her resignation will be a monumental change for the Court, not only because a new Chief Judge will bring new administrative priorities, but also because her successor’s vote on the Court’s cases could shift the balance of power on the bench.
Judge DiFiore has commanded a four-Judge majority on the Court since Judges Madeline Singas and Anthony Cannataro joined the bench in June 2021, ruling most often in favor of the prosecution in criminal cases and against challenges to State action, whether legislative or regulatory. While those two appointments solidified the judicially “conservative” majority, Chief Judge DiFiore’s judicial track record goes back consistently to 2016 when she joined the Court. She wrote the opinion of the Court in 16 criminal cases, only 2 of which she found in favor of the criminal defendant (see People v Austin, 30 NY2d 98  [defendant’s Sixth Amendment right to confrontation was violated by introduction of DNA evidence through witness testimony]; People v John, 27 NY3d 294  [introduction of DNA reports that concluded that defendant’s DNA profile was found on gun without producing a witness who conducted, witnessed or supervised the laboratory’s generation of the DNA profile violated the defendant’s Sixth Amendment confrontation rights]).
Outside of her opinions favoring the prosecution in criminal appeals, Chief Judge DiFiore’s judicial legacy in civil appeals will likely be shaped by her most recent opinion: the decision striking down New York’s redistricting maps in Harkenrider v Hochul (__ NY3d __, 2022 NY Slip Op 02833 [Apr. 27, 2022]). Writing for five of the Court’s judges, Chief Judge DiFiore held that the redistricting maps that the Legislature had adopted after the Independent Redistricting Commission failed to do its job were invalid because they were not adopted according to the necessary constitutional process and were substantively a partisan gerrymander favoring Democrats. While many decried the Chief Judge’s opinion as politically conservative, because it hurt liberal electoral causes, it actually showed the Chief’s loyalty to the constitutional choices made by the political branches. For the Chief, the People of the State enshrined an independent redistricting process into the state constitution and banned partisan gerrymandering, and she was not about to throw that out merely to favor a political cause.
Similarly, in White v Cuomo (__ NY3d __, 2022 NY Slip Op 01954 [Mar. 22, 2022]), the Chief Judge, writing for a four judge majority, deferred to the legislative determination, after hearings upon a significant record, that daily fantasy sports were not gambling prohibited by the New York Constitution. That holding, and many others, have been consistent with the Chief Judge’s leanings toward deference to the Legislature and administrative agencies acting in their fields of expertise (see also e.g. Matter of Adirondack Wild: Friends of the Forest Preserve v New York State Adirondack Park Agency, 34 NY3d 184  [DEC had jurisdiction to allow snowmobile uses as preexisting uses on land designated as a wild river under the Rivers Act]; Matter of LeadingAge N.Y., Inc. v Shah, 32 NY3d 249  [reviewing regulations promulgated by the Department of Health limiting executive compensation and administrative expenditures by certain health care providers receiving state funds]).
When she wasn’t directing the arguments from the bench, Chief Judge DiFiore oversaw the modernization of the New York court system. She will mostly be remembered for how she directed the New York courts through the COVID-19 pandemic, keeping open the courts for essential proceedings while shifting others, including appellate arguments, to virtual proceedings. While the courts’ pandemic response was largely successful, the one black eye that will be remembered is how the Chief Judge was unable to convince Senior Associate Judge Jenny Rivera to comply with the court system-wide COVID vaccination policy that DiFiore instituted, and was forced to watch for this past year as Judge Rivera appeared remotely for argument on a TV set up in the courtroom because she was banned from entering Court of Appeals Hall.
But that certainly wasn’t the only administrative issue that the Chief Judge handled. She cut the judicial budget, and angered a number of judges in the process by refusing to recertify them for service after they reached mandatory retirement age. She commissioned a report on racial injustice in the New York courts. And she undertook a comprehensive review of the entire court system, itself through the Excellence Initiative, and tried devised ways to try to improve access to justice and to reduce the amount of time it takes for courts to decide cases.
Now that the Chief Judge is stepping down, possibly in the wake of an ethics investigation into whether she interfered in a disciplinary hearing for the Chief of the court officers’ union, the unenviable task of choosing a new State top judge falls to the Judicial Nomination Commission and to the Governor, under threat from the Legislature that they will closely scrutinize any nominee for the first time in Court of Appeals history (no Governer’s nominee to the Court of Appeals has ever been rejected by the Senate, and the hearings to date have largely been cordial and non-substantive, very much unlike the political shows that occur in Congress each time a judicial nominee gets a confirmation hearing).
A quick refresher on the nomination process: As provided under Judiciary Law s 68 (2), when a vacancy on the Court of Appeals occurs other than because of the expiration of the retiring Judge’s term, the Clerk of the Court must immediately notify the Commission on Judicial Nomination, which then has 120 days to solicit applicants, investigate their qualifications, and recommend a list of up to 7 people for the Governor’s consideration. Let’s assume that happened today, so the Commission will have until early November to send over the list. Once the Governor receives the list, she must appoint someone from the list to Court no sooner than 15 days and no longer 30 days after that, subject of course to New York State Senate confirmation. Once confirmed, the judge can then join the bench as soon as later that afternoon.
Two more things about the process. Because the Senate is not scheduled to return for its next session until January 2023, and the Chief Judge is resigning at the end of August, it is likely that the Court will start its 20220-23 argument term this fall without a confirmed successor. In that case, the six Judges of the Court will pick who will serve as the acting Chief Judge until a nominee is confirmed. In the Court’s history, that pick has generally been the most senior Associate Judge of the Court, now Jenny Rivera who is still banned from the courthouse under the vaccination policy. So, it may be that New York has its first fully remote acting Chief Judge, or the Judges will pick someone else, likely Judge Michael Garcia who is the next most senior Associate Judge of the Court (or remote acting Chief Judge will, as her first act, repeal her ban from the courthouse, who knows?).
And if the Commission on Judicial Nomination sends a list to the Governor, who nominates a new Chief Judge while the Senate is not in session (the Commission can take up to 120 days, but doesn’t have to. It could take any amount of time it deems necessary to review the applications, interview the candidates, and put together the list. That could take much less than 120 days.), the Governor’s selection can serve as an interim appointment to the Court until the confirmation process is complete (see Judiciary Law s 68  [“Whenever a vacancy occurs and the senate is not in session to give its advice and consent to an appointment to fill such vacancy, the governor shall make an interim appointment from among those persons recommended to him by the commission. An interim appointment shall continue until the senate shall pass upon the governor’s selection.”]). If the Senate confirms the interim Chief Judge, great! She can continue to serve. But if the Senate rejects the nomination, a new vacancy will have to be filled after 60 days have elapsed. But, according to a very helpful source, this provision will never apply to allow the Governor to make an interim appointment because the Senate does not formally gavel out of session for the non-session months, and returns every so often during the fall to gavel in. So, no interim Chief Judge will be appointed. Only an acting Chief until the new nominee is confirmed.
That’s the process, but what about the substance? Who could be the pick for New York’s next Chief Judge? The criteria for picking a Chief Judge is different than picking an Associate Judge of the Court. The Chief has to not only vote on the Court’s few cases, but also has to oversee the administration of the entire court system. That is not a job for the faint hearted. So, while the calls for a public defender (a judge with a criminal defense side background would provide a valuable perspective that the Court of Appeals currently lacks) or a progressive judge to be appointed are certainly understandable, given the way that many view the Court’s recent decisions, those calls only speak to half of the Chief Judge’s job. The person appointed must know how to run a large organization. That is not something that is easily learned on the job.
With that in mind, here’s my preferred criteria for New York’s newest Chief Judge, as I’ve explained previously:
- Someone who has prior administrative experience running a large organization
- Appellate judging is different than most of the practice of law, and having that experience on the Appellate Division, especially handling high volume caseloads where almost every order is appealable as of right, is valuable insight for a Judge to understand exactly how the Court of Appeals’ holdings will impact the lower courts.
- The legal issues that people and municipalities face upstate are different than those generally faced in NYC. Without someone who can understand life in upstate New York and explain to the other Judges how the issues they are deciding will play differently north of New York City, the Court will be lacking an important perspective.
- The Court lacks anyone with prior criminal defense experience. With the Court’s heavy criminal docket, that too is a valuable perspective that should be represented on the State’s highest court.
- And, finally, of course, the Court should be representative of the diversity of our State. Representation matters at the height of our legal system, for both the lawyers and the litigants who appear in it.
Alright, let’s identify a few candidates:
- Corey Stoughton, NYC Legal Aid’s Attorney-in-Charge of the Criminal Defense Special Litigation Unit
Corey Stoughton is NYC Legal Aid’s Attorney-in-Charge of the Criminal Defense Special Litigation Unit, and is well known for her work at the New York Civil Liberties Union and at the U.S. Department of Justice, Civil Rights Division before that. She graduated from Harvard Law and Michigan for undergrad, and would be a fantastic addition to the Court, especially considering that she’s running a very large part of NYC Legal Aid right now. She’s a NYC-er, but with Governor Hochul picking Judge Troutman to replace Judge Fahey, one more downstater on a Court that already has 5 of them may not be a dealbreaker for our Buffalonian Governor.
- Hon. Elizabeth Garry, Presiding Justice of the Appellate Division, Third Department
Judge Garry could very well be the perfect selection for the next Chief Judge if she puts her name in for the opportunity. She has served as the Presiding Justice of the Third Department for the past four years, with all the administrative responsibilities that come with being the PJ, and has served on the Appellate Division since 2009. She’s the first openly gay Presiding Justice of the Third Department, and a committed upstater. She’s a fairly progressive judge, and would be available to serve most of a 14-year term as the Chief Judge. She would be a fantastic pick, in my opinion.
- Hon. Sylvia O. Hinds-Radix, Corporation Counsel of the City of New York
Judge Hinds-Radix is currently overseeing the New York City Law Department, after serving for more than a decade as an Associate Justice of the Appellate Division, Second Department. Yes, she just became Corp. Counsel this year, and resigned from the bench to do it, making it unlikely that she might put her name in to be the next Chief Judge, but take a look at her qualifications. Administrative experience? Check, she’s currently Corp. Counsel and previously served as Administrative Judge for Civil Matters for the Second Judicial District. Served on the Appellate Division? Check. Has a public interest background? Check, she previously served as Chief Counsel in the Immigration Program at the District Council 37 Municipal Employees Legal Services, the Supervising Attorney of the Landlord and Tenant Division, and the Senior Attorney of the Consumer Litigation Unit and Bankruptcy. Is representative of the diversity of New York State? Definitely. She would be a great, even if unlikely, choice.
Who will be New York’s next Chief Judge? Now we wait to see how the process plays out.