N.Y.’s courts are hurting our people

For years, lawyers, advocates and academics have decried New York’s antiquated court system, but political insiders who benefited from the system have resisted change. Maybe they’ve finally gotten their wake-up call.

Monday, tentative new legislative maps were released, throwing the New York political world into disarray. These new maps are the result of a decision three weeks ago by the Court of Appeals, the highest court in the state, which struck down the state’s new legislative maps and gave control of the redistricting process to a single Republican judge in a tiny Western New York county. The ruling was a dramatic display of contempt for the people of New York and their elected representatives and will prove to be a disaster for democracy and the most vulnerable. The newest maps, which are likely to become final on Friday, could mean that New Yorkers of color, immigrants and the historically disenfranchised will wind up underrepresented in government for the next decade.

This latest disaster was entirely predictable. Last year, we were among many who warned the state Senate last year not to confirm Madeline Singas, a career prosecutor and political insider with a track record of fighting reforms meant to reduce racial inequity, to the Court of Appeals. Democratic leadership in the Senate ignored our calls and rammed her nomination through, over progressives’ objections.

Singas was the deciding vote for the disastrous redistricting decision. She voted alongside Chief Judge Janet DiFiore, a former Republican and a close ally of disgraced former Gov. Andrew Cuomo; Michael Garcia, a Republican former head of Immigration and Customs Enforcement under President George W. Bush; and Anthony Cannataro, who was protested by tenant advocates when he reopened New York City’s Housing Court early in the COVID-19 pandemic to allow landlords to resume filing for eviction against vulnerable tenants (at the time, evictions themselves were frozen). Tellingly, their ruling came over the objections of three judges of color, including the court’s only two Black judges.

While the political consequences of this decision may draw the Legislature’s attention, we are just as concerned about the regressive policy decisions this court has been making. In case after case recently, the court has divided 4-3 or 5-2, with a conservative bloc eroding the rights of New Yorkers and watering down progressive legislation, over increasingly passionate dissents by Judges Rowan Wilson and Jenny Rivera. Just last month, the conservative bloc held that a 19-year-old in police custody who asked a police officer to call his lawyer never invoked his right to counsel, and in another decision, made it harder to obtain compensation for injuries caused by toxic products. As the court systematically undoes the very laws the Legislature was put in place to pass, it is increasingly clear that it does not reflect New Yorkers’ values.

The problems with New York’s judiciary go deeper than the high court. The state Constitution gives the governor the power to select members of the Court of Appeals nominating commission, communicate preferences to them and nominate candidates without consideration for important factors such as diversity. At the trial level, the problems are even more severe, with many judges effectively elected by throwing cocktail parties for political insiders, in efforts to obtain their support at opaque judicial conventions. This process is so indefensible that a federal constitutional challenge made it all the way to the United States Supreme Court, which harshly criticized the process and all but asked the Legislature to amend it.

All this has created an opening for much-needed reform. But the conservatives on the court are hoping to seize this moment to further centralize their power. Until recently, the only detailed reform proposal came from DiFiore. Its major effect would, unsurprisingly, be to consolidate power in the chief judge and Office of Court Administration.

The Legislature should choose a very different path forward. Progressive court reform could prioritize accessibility, accountability and diversity, in line with goals pursued by former Chief Judge Jonathan Lippman. Better funding and more judges are needed to end the current norms of extremely long waits for briefs and under-analyzed opinions. New Yorkers facing eviction, loss of liberty or loss of child custody must have a right to counsel. The judicial selection process for every judge on every court must be made more democratic, independent and transparent. And those selecting judges must seriously consider diversity, not just of background and identity, but also of professional experience.

We hope that the Court of Appeals’ recent decision serves as a wake-up call, focusing New Yorkers and their elected officials on the desperate need to bring New York’s courts out of the 19th century and into the 21st century. The stakes could not be clearer.

Fontier is the immediate past president of the New York State Association of Criminal Defense Lawyers. Rosenblum is an assistant professor at NYU School of Law. Martin is the director of judicial accountability at the Center for Community Alternatives.