Who Should New York Hail as the Next Chief Judge of the State?

It’s not every day that New York gets to pick a new Chief Judge of the State to lead the court system in new directions and head the State’s top court. In fact, since the Commission on Judicial Nomination was created in 1977, it has had the chance to send the Governor only six lists of potential nominees to fill the Chief Judge’s seat.

Who has been on those past lists is interesting, and could help to forecast who Governor Kathy Hochul is most likely to choose from the Commission’s latest list. Let’s start in the beginning. In 1979, the Commission was asked, for its first official act, to fill Chief Judge Charles Breitel’s open seat. On that list were seven sitting and former judges: three from the Court of Appeals, three from the Appellate Division, and one from Supreme Court. Ultimately, the Governor chose Court of Appeals Associate Judge Lawrence Cook to become the new Chief Judge

In 1985, Chief Judge Cooke’s seat was up, and the Commission again selected seven judges for the list to send to the Governor. One Associate Judge on the Court of Appeals, three Appellate Division justices, two federal judges, and a Surrogate. And again, the Associate Judge of the Court of Appeals, Sol Wachtler, won out and was seated as the State’s top judge and administrator.

In 1993, when Sol Wachtler stepped down, the Commission’s list had five sitting judges on it: two from the Court of Appeals and three from the Appellate Division. There were also two private practitioners, but when the time came for the Governor to make the pick, it was Associate Judge of the Court of Appeals Judith Kaye who became our first woman Chief Judge. Chief Judge Kaye was then reappointed as Chief Judge in 2007, out of a list that contained only two other judges. But that list was but a formality, because everyone knew from the outset that Chief Judge Kaye was going to be the pick.

When Chief Judge Kaye reached mandatory retirement age the next year, the Commission’s list had four sitting judges–two from the Court of Appeals and two from the Appellate Division–and three private lawyers. Again, when the pick was in, the Governor sent Presiding Justice of the First Department Jonathan Lippman to the Chief Judge’s seat. That’s five out of five Chief Judge nominations that went to sitting judges, four who were Associate Judges on the Court of Appeals itself and PJ Lippman from the Appellate Division.

And finally in 2015, when Chief Judge Lippman had to retire, the Commission’s list was different. It did not have a single sitting judge on it. None from the Court of Appeals. None from the Appellate Division. It was full of six private lawyers and a sitting District Attorney. And we all know how that one worked out. The Governor picked Westchester County District Attorney Janet DiFiore to lead the State’s judiciary.

So, of the six past nominations for a Chief Judge vacancy, New York governors have chosen five sitting judges and an elected District Attorney when picking a sitting judge simply wasn’t an option. That’s a pretty long historical trend, and would appear, to me at least, to inform who might be next to lead to the Court of Appeals.

The Commission’s List for Chief Judge DiFiore’s Open Seat

For Chief Judge DiFiore’s vacancy, the Commission received 41 applications, 22 from women and 17 from candidates with diverse backgrounds. After interviewing 17 of the applicants, the Commission narrowed its list down to the chosen seven: four sitting judges (one from the Court of Appeals, two from the Appellate Division, and one Judge of the Court of Claims), and three attorneys of distinction from outside the courts. It’s quite an impressive list:

The first thing that jumps out to me is that this is a list giving the Governor a number of chances to choose the first ________ Chief Judge. Acting Chief Judge Cannataro, if picked, would be the first openly gay Chief Judge. Presiding Justice LaSalle would be the first latino Chief Judge. Justice Oing would be the first Asian Judge of the Court of Appeals, not to mention its first Asian Chief Judge. Judge Richardson-Mendelson would be the first black woman made Chief Judge. And Corey Stoughton would be the first public defender-type to be named the Chief. A list of firsts, indeed.

So what does the Governor want in a new Chief Judge? Usually, we just have to guess. But this time the Governor expressly told us what she was looking for. In an op-ed in the Daily News, Governor Hochul laid out two primary criteria for who she would like in a new Chief Judge:

Our Court of Appeals, New York’s court of last resort, has always been a crown jewel of justice. Going back to Chief Judge Benjamin N. Cardozo’s tenure as chief judge in the early 1900s, and even earlier, the court was renowned for its persuasive and thoughtful decisions — on issues ranging from protecting consumers, to advancing civil rights and the right to effective counsel.

Against the backdrop of this proud tradition, I am looking to select a chief judge to lead the court in a time of both great challenges and opportunities.

First, we need a leader who, through intelligence and conviction, can unite the existing court so that it speaks in a strong and respected voice.

The U.S. Supreme Court has spoken — with decisions such as Dobbs vs. Jackson, taking away a woman’s right to choose, and New York State Rifle and Pistol Association vs. Bruen, tossing a century-old law protecting New Yorkers from the proliferation of guns. We are now relying on our state courts more than ever to protect our rights. We need our courts to defend against this Supreme Court’s rapid retreat from precedent and continue our march toward progress.

Second, we need a leader who can effectively manage the diverse and complex courts across the state. We have family courts, criminal courts, commercial courts, civil courts, housing courts, mental health courts, domestic violence courts and other community, trial and appellate courts. Because of the determination that jurors needed to be six feet apart during COVID, criminal cases slowed to a crawl. The pandemic took a major toll on the operations of the courts and our new chief judge must work aggressively to return court activity, especially criminal proceedings, to pre-pandemic levels to protect public safety.

The Governor is looking for a thought leader who can bring the Court together, and who has a significant administrative background to bring the New York courts back from the pandemic-era that Chief Judge DiFiore oversaw. That’s not easy criteria to satisfy. But within the next week or so, the Governor will have to make that pick. Here’s who I think best fits.

Who Will Be the Next Chief Judge of New York

After thinking about the history of Chief Judge nominees over the last five decades and what the Governor has said she wants in a new Chief, my list surprised even me.

The Frontrunner – Hon. Edwina G. Richardson-Mendelson

Judge Richardson-Mendelson is my front runner pick for a number of reasons. First, she served for many years as the Administrative Judge of the New York County Family Courts. There may not be a harder job in all of the New York Courts. And she managed those courts so well that Chief Judge DiFiore selected her to be the Deputy Chief Administrative Judge for Justice Initiatives, which includes the responsibility to run the Equal Justice in Courts Initiative and implement the recommendations of Special Adviser on Equal Justice, Jeh Johnson, in his October 2020 report examining racial bias in the state court system. She has the most court administration experience on this entire list, without much question.

Before joining the Court system, Judge Richardson-Mendelson she obtained her Master of Philosophy and a Ph.D. in criminal justice and worked for the Legal Aid Society and the Sanctuary for Families Center for Battered Women’s Legal Services. While she was back in school for her advanced degrees, she served as assigned counsel in. Family Court, representing parents who couldn’t otherwise afford representation.

The most administrative experience on the list, experience protecting the rights of those who most need it, with a J.D. and Ph.D. And did I mention that she would be the first black woman who would be chosen as the Chief Judge? Those seems like winning qualities to me.

The Favorite – Acting Chief Judge Anthony Cannataro

When I first looked at the list, Acting Chief Judge Cannataro stood out as the clear pick. He’s currently the acting Chief, has sat on the Court for a year, and has extensive administrative experience from before he was appointed to the Court. He would be New York’s first openly gay Chief Judge.

But here’s the issue: Judge Cannataro is not the intellectual leader who could unite the Court and bring together its divided factions. In the past year, Judge Cannataro hasn’t been able to sway the normally dissenting judges from their positions to allow the Court to speak with one voice, certainly not in the redistricting case. Even as Acting Chief Judge, the rate of dissent at the Court has stayed about the same. That is problematic when the Governor said she wants a thought leader who can unite the Court.

The Appellate Division Presiding Justice – Hon. Hector D. LaSalle

Presiding Justice Hector LaSalle has some significant administrative experience after running the Second Department for the past year-plus. That’s not an easy task, to be sure. He’s been vouched in to sit on the Court of Appeals before, for the Daily Fantasy Sports case and ended up casting the deciding vote. He’s a Democrat, and would be State’s first latino Chief Judge. But Presiding Justice LaSalle is not the kind of intellectual leader who can help restore the Court’s image as a leading protector of equal rights throughout the nation.

The Intellectual Appellate Division Justice – Hon. Jeffrey K. Oing

I’m surprised that it has taken this long for Justice Oing to make a final list of potential nominees to the Court of Appeals. I thought it could have happened back when Judge Leslie Stein announced her surprise retirement two years ago. He would have been a great pick then, and he’s a great pick now. Justice Oing has served on the First Department since 2017, was the first Asian American judge appointed to New York County’s Commercial Division, and served on the trial bench for 14 years before his elevation to the Appellate Division. Justice Oing also served as Deputy General Counsel for New York City, handing matters involving the City Council, and has been roundly recognized as an excellent jurist. His administrative experience is limited, but he did run the commission to draw district voting lines in New York City. While that may be a jump to running all of New York courts, nominating the first Asian American to the Court of Appeals would be an accomplishment for any governor.

The Yale Law Professor – Abbe R. Gluck

There’s no real question who the intellectual leader of the Commission’s list is. Abbe Gluck is a Yale JD and serves as a Professor at both Yale Law School and Yale Medical School. She clerked at the Second Circuit and then for Justice Ruth Bader Ginsberg at the US Supreme Court. And is well known to be the smartest lawyer in any room she is in. She even headed up the White House COVID-19 Response. Whether she could unite the Court using her intellect is the question. And her administrative experience is limited. And she’s not a sitting judge currently. All those things say to me that she’s not going to be the new Chief Judge, though she would be a fantastic addition to the Court.

The Dark Horse – Alicia Ouellette

The President and Dean of Albany Law School, Alicia Ouellette, may not be a known commodity outside of Albany (and the NY law school dean community). She is a well-respected health law scholar and, most importantly, she brought the law school from a place of significant financial distress to the thriving place it has become. Dean Ouellette also clerked at the Court of Appeals for Hon. Howard A. Levine (my judge!), and then was an associate for a year at my firm. She joined the Appeals and Opinions division of the NY Solicitor General’s office, where she argued more than 100 appeals before the Appellate Division, the Court of Appeals, and the Second Circuit.

Dean Ouellette has the appellate chops and the administrative experience to bring the Court together, and she used to work there. I think she’d be a great pick, though an unlikely one.

The First Public Defender – Corey L. Stoughton

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. But she just doesn’t have the administrative experience necessary to run the entire New York court system.

That’s my best guess. What do you think? Agree / disagree? I’d love to hear some dissent. And soon enough, we won’t have to guess any longer. We’ll just have a new nominee for Chief Judge of the State of New York.