Last week, Janet DiFiore, chief judge of the New York Court of Appeals, the state’s highest court, unexpectedly announced that she would resign her office three years before reaching the mandatory retirement age of 70. Coming on the heels of a term in which DiFiore voted as part of a bloc of four judges that decided 96 out of 98 cases, the chief judge’s exit portends a major shift in the majority’s judicial philosophy. Progressive lawmakers and activists now see an opening for Governor Kathy Hochul to nominate a replacement who will be friendlier to criminal defendants and more deferential to the state legislature. But given that the Democratic Party already controls the governor’s office and supermajorities in both legislative houses, this change may effectively erode one of the last few checks on the power of one-party rule in Albany.
The New York State Constitution mandates that the governor select high-court nominees from a list of candidates deemed well-qualified by a commission on judicial nomination. This 12-member body, made up of commissioners appointed by the governor, the chief judge, and majority and minority leaders of the two legislative houses, requires eight votes for a nominee’s name to appear on the list; DiFiore and former governor Andrew Cuomo’s picks comprise seven votes. Once the governor selects from among the names presented, the state senate must confirm the nominee with a majority vote. But the senate serves effectively as a rubber stamp, having never rejected a nominee.
The vacancy of a chief judge presents a uniquely valuable opportunity for governors, who can secure two political wins by elevating a glass-ceiling-shattering associate judge to the chief position and selecting a successor associate on grounds of judicial philosophy and state politics. Cuomo nominated six of the seven sitting judges, including DiFiore, who was long considered a close ally of the former governor. Hochul’s first nominee, Shirley Troutman, who took office earlier this year, served as a state and federal prosecutor before becoming a lower-court judge upstate. She joined several other former prosecutors on the bench, including DiFiore, Madeline Singas, and Michael Garcia. Notably, Rowan Wilson, the first black partner at legendary white-shoe firm Cravath, Swaine & Moore before joining the court in 2017, never served as a prosecutor. If Hochul follows historical practice, that would leave Wilson and Troutman as the two frontrunners for the chief judgeship.
Progressives have complained that the penchant to nominate prosecutors and corporate attorneys has affected the high court’s decisions, including those related to criminal justice. Consider a noteworthy case from April. Malik Dawson, a 19-year-old suspected of sexual assault, was arrested and brought into a police station, where a detective informed him of his Miranda rights. After confirming that he understood each of his rights, Dawson remarked, “I just wish that I’d memorized my lawyer’s number. He’s in my phone. Is it possible for me to like call him or something?” The detective left the interrogation room to retrieve the phone, but instead returned and asked Dawson whether he wanted his lawyer or instead preferred “to just figure this out.” After being read his Miranda rights again, Dawson began to speak with the detective, who suggested that if he told the truth and appeared contrite, this might help his case.
Dawson wrote an apology letter to the victim, which, along with his statements, were admitted as evidence and used to convict him of first-degree sexual abuse, with a sentence of seven years of imprisonment and ten years of post-release supervision. In a summary 5–2 opinion, the Court of Appeals affirmed the conviction, holding that Dawson had not affirmatively and unambiguously requested his lawyer’s presence. Judge Wilson dissented. “Mr. Dawson unequivocally requested counsel,” he concluded, asserting that the majority’s holding “has imposed a high and unrealistic linguistic burden on criminal defendants—where the intent is clear, but some better choice of words can be imagined, often finding ambiguity in deferential language.”
Elevating Wilson, whose spirited dissents have earned him a reputation as the leading progressive critic of the perceived conservative majority, would allow Hochul to chart a new path, free from the predecessor in whose shadow she remained for much of the last decade. Wilson’s lengthy opinions challenging the DiFiore-led bloc, moreover, would provide a roadmap for a new court majority. In one newsworthy recent dissent involving Happy, the Bronx Zoo elephant, he wrote that he would grant a writ of habeas corpus to free the pachyderm from captivity. For all its quirkiness, the case demonstrates that judicial innovation would likely become a hallmark of Wilson’s leadership. A trial-court decision striking down New York City’s noncitizen voting law, for instance, may well be overturned on appeal to expand local-level voting rights to noncitizens.
Others, however, are pushing Hochul to pick Troutman, who would be the first black woman to occupy the position of chief judge. Though not a member of the court’s conservative bloc, she occasionally votes with it. That Troutman and Wilson took different sides in the Dawson right-to-counsel case reveals a meaningful difference in their judicial approaches, especially relating to criminal-justice matters. Interrogation is one of law enforcement’s most important tools to solve cases, and declines in homicide clearance rates are already making it harder to hold violent offenders accountable.
In essence, progressives are debating the relative priority of identity versus ideology—whether diversity or judicial consistency should carry the day. But in a state with Democratic supermajorities in the legislature and control of the governor’s mansion, greater judicial deference to the legislature could further cement the power of one-party rule.
In her January State of the State address, Hochul promised to “create a New Era for New York.” She can now do so for the high court. But she should proceed with caution: new eras don’t always usher in better times.
Photo by Michael M. Santiago/Getty Images