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Randolph M. McLaughlin's Comments in Law 360 on New York Court of Appeals Vacancies.

Vacancies Put Pressure On Cuomo To Diversify Top NY Court

By Pete Brush

Law360, New York (November 20, 2012, 6:55 PM ET) -- The unexpected death of the only African-American judge on New York's highest court adds incentive for Gov. Andrew Cuomo to take racial diversity into account as he restocks the seven-member Court of Appeals, sources said Tuesday, especially since the court also is set to lose its lone Hispanic judge.

The death of Judge Theodore Jones Jr. on Nov. 6 came just weeks ahead of the New York State Commission on Judicial Nomination's Dec. 1 deadline to give the governor a list of nominees to replace Judge Carmen Ciparick, who must retire at year's end because she has turned 70.

The nominating committee chaired by Skadden Arps Slate Meagher & Flom LLP counsel Judith Kaye — herself a former New York chief judge who was forced to retire in 2008 at age 70 — then will turn around and prepare a second list of candidates to replace Judge Jones by March 7.

"We know Gov. Cuomo is sensitive to the fact that he will be replacing the only two people of color on the Court of Appeals, and there are many highly capable judges and lawyers of color in New York to choose from," New York City Bar Association spokesman Eric Friedman said on behalf of the 23,000-lawyer group.

Filling the vacancies with nominees who are not black or Hispanic almost certainly would trigger heated criticism from minority lawmakers, attorneys and other voices in a state that 3.4 million African Americans and 3.5 million people of Hispanic or Latino origin call home, experts said.

Many have said that a single replacement from each constituency should represent a mere starting point in terms of diversifying the 165-year-old court.

“People from different backgrounds bring different experiences,” New York-based Cooper & Dunham LLP intellectual property litigation partner Robert Maldonado said. “Those perspectives should be present on the court.”

The list of potential judges to replace Ciparick is likely to focus on Hispanic candidates since her constitutionally mandated retirement has been anticipated for some time, according to Maldonado, who also serves as a regional president of the Hispanic National Bar Association.

“Cuomo probably has a number of Hispanic applicants in the pool now,” said Maldonado, who sees “a great deal of enthusiasm” in the Hispanic bar to find someone with qualifications equal to Ciparick, who was nominated by former Gov. Mario Cuomo and has served since 1994.

That said, experts didn't attempt to limit Cuomo's choice to one nominee, instead stressing the general notion of diversity.

There is a basic political component at work for Cuomo, who reportedly has national ambitions and certainly watched closely as minority voters played their biggest role yet in November's national election.

“If Gov. Cuomo has aspirations to move on into higher office, I don't think he would want his record to show that, when he had an opportunity to replace two judges of color, he chose to do something else,” said Pace University law professor Randolph M. McLaughlin, who also works as of counsel on civil rights matters at Newman Ferrara LLP.

From recent cases involving police search and seizure to a historic landmark decision attacking the legality of slavery, over its history the court has decided countless cases with clear civil rights components, experts said.

Most recently, cases involving the legality of same-sex marriage — and even a decision about whether strippers' dances are entitled to tax breaks — consistently demonstrate the need for a diverse range of perspectives, they said.

Beyond race and ethnicity, Cuomo also could face criticism from women if at least one of his picks in the coming months is not a woman. Choosing two male candidates would leave only two women on the court.

"We would like to keep the court balanced with men and women," said New York State Board of Law Examiners counsel Cara Brousseau, who serves as president of the Albany-based Capital District Women's Bar Association.

Before the 2008 retirement of Kaye — who was the first woman to head the Court of Appeals — the court had experienced a five-year period where women held a four-seat majority, Brousseau said. That balance could be reattained were Cuomo to use his two upcoming picks to nominate women.

Another concern, Kaye has said, is making sure the pool of applicants for upcoming 14-year terms on the court remains robust in terms of overall numbers of qualified applicants. That is especially true since all of the court's current members will be forced to retire because of their ages within five years barring a change to the Empire State's constitution.

To that end, Kaye has been joined by heavy-hitting former top officials like Mario Cuomo on "road shows" geared toward deepening the pool of qualified candidates.

Some have expressed concern, among other things, that — regardless of diversity — the judgeships, which pay $177,000 per year and $182,600 for the chief judge, simply aren't lucrative enough to lure partners from top defense firms.

Other critics have suggested that interest waned in recent years because the judgeships appeared to be handed out as political rewards, making them less attractive to applicants who were not immersed in Albany politics.

The concerns came into focus when, according to the Fund for Modern Courts, the number of applications fell from 46 in 2003, when current judge Susan Phillips Read was appointed, to 17 applications in 2008, when current Chief Judge Jonathan Lippman was chosen to succeed Kaye.

"Surely, in this great state with so many outstanding lawyers and judges there must be more than a dozen and a half applicants for a prestigious position on the state’s highest court," said Fund for Modern Courts chair Milton L. Williams Jr.
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