Why pick judges in secret?

Earlier this week, former state Assemblyman-turnedpolitical-consultant Roberto Ramirez bemoaned the state Senate Judiciary Committee’s rejection of state appellate Justice Hector LaSalle by insisting that he was being subjected to a different standard from previous chief judge nominees of the modern era, all of whom pretty much slid onto the Court of Appeals as if riding on greased rails.

Ramirez, a partner in the MirRam Group, has been pushing hard to boost the jurist’s seemingly dwindling chances of getting on the high court. The problem, he insisted on the Gotham Gazette’s “Max Politics” podcast, appeared to be that LaSalle was the first Latino nominee and was nominated by the first female governor.

Noting that several of the senators who had voted against LaSalle insisted that the recent impact of conservative decisions in state and federal courts required a new scrutiny during the advise-and-consent process, Ramirez scoffed to host Ben Max, “If the nominee had been a Black woman, or a Black man, or Jewish candidate or a gay candidate, would what happened have been done to them?”

While Jewish chief judges in the modern era include Sol Wachtler and Jonathan Lippman, there has never been a Black person nominated to serve as chief judge, despite several being named as associate justices. According to reporting from Sam Mellins of New York Focus, current Associate Justice Shirley Troutman, who is Black, applied to the state Commission on Judicial Nomination, the 12-member panel tasked for more than three decades with vetting possible nominees to the high court.

The commission has held considerable sway over the governor’s choices since its creation more than four decades ago: It supplies her with a list of seven names to choose from. And while the state Senate’s vetting of Court of Appeals nominees is done almost entirely in public — the Judiciary Committee’s hearing on LaSalle went on for five hours in a packed room — the work and deliberations of the nominations commission are a neartotal black-box operation. Who has applied for nomination? It can’t say. Whom did it select for interviews? Go ask the wall. Why did one candidate who has never been a judge before end up on the list of seven possible nominees, but a jurist who might have years of experience on the Court of Appeals itself didn’t make the cut? Crickets.

This silence is, I hasten to add, absolutely in line with state judiciary law, which states that “all communications to the commission, and its proceed

ings, and all applications, correspondence, interviews, transcripts, reports and all other papers, files and records ... shall be confidential and privileged.” Once the list of seven has been compiled, only the governor has access to the documents pertaining only to those potential nominees; once she makes her pick, the Senate has access to documents pertaining to that nominee and to no one else.

This is, in other words, a part of the process that is only slightly more transparent that the selection of a new pope by the College of Cardinals. Which makes one wonder: What’s up with all the secrecy? And why do we question the Senate’s decisions but act as if the commission’s selections are holy writ?

Those familiar with the inner workings of the commission worry that the likely scuttling of LaSalle’s nomination has blown a large hole in the primacy of “merit selection,” though certainly critics can quibble with using that term on a process that has always involved a political element. (For one thing, members of the commission are selected by the governor, legislative leaders and the chief judge; half of the current members of the panel were picked by Andrew Cuomo or Janet DiFiore.)

It is hard to imagine that the next opening on the court will generate any candidates who ever registered as Republicans. There’s no percentage in applying for a job you’re not likely to win or even be short-listed for. And for candidates of any professional background, that’s precisely why the commission’s secrecy is necessary: Why run the risk of being publicly rejected, and maybe losing face in the eyes of partners or clients? (Hey, didja see Dave applied to be on the Court of Appeals? Shh, here he comes!)

But there’s one aspect of this process in which I think the veil should be lifted: Once the seven-name list of potential nominees has been released, there’s no reason why the public shouldn’t get a look at the materials submitted to support each one, with personal details redacted as necessary. And that includes either recordings or transcripts of the interviews the commission conducts with all seven — a way to let the public in on the process and assess each one of the finalists as the governor moves toward a decision, as well as the commissioners. Opening this window would require a change in state law.

After all, the chief judge isn’t merely the leader of the Court of Appeals; that individual is also the top manager in the state’s judiciary, invested with significant responsibilities to push the governor and the Legislature for structural changes and reallocations of resources. If we want to prevent the next scuttled nomination, let in some sunshine.