Senate Majority Leader Andrea Stewart-Cousins (D-Yonkers) listens as Gov. Kathy Hochul presents...

Senate Majority Leader Andrea Stewart-Cousins (D-Yonkers) listens as Gov. Kathy Hochul presents her state budget at the State Capitol in Albany on Wednesday, Feb. 1, 2023. Credit: ASSOCIATED PRESS/Hans Pennink

ALBANY – Senate Majority Leader Andrea Stewart-Cousins on Tuesday said an effort is underway that would dramatically change the selection of members to the state’s highest court to give governors and the State Senate far more latitude in picking judges.

Stewart-Cousins (D-Yonkers) wants to eliminate the state Commission on Judicial Nomination, which provides a list of qualified candidates from which a governor must choose a nominee for a 14-year term on the state Court of Appeals. She would continue the required confirmation of the nominee by the Senate.

“Having a group of people submit a limited number of people every time you are looking to fill a vacancy is no longer something we would like,” Stewart-Cousins said Tuesday. The proposal would require a constitutional amendment, which could go to voters next year.

The judicial commission was created in a 1977 constitutional amendment. It interviews and evaluates potential nominees to the Court of Appeals to shield the selection process from at least some politics.

Assembly Speaker Carl Heastie (D-Bronx)  also believes the selection process should be re-examined, said spokesman Michael Whyland.

Several Democratic legislators have criticized the commission because it is dominated by appointees from former Gov. Andrew M. Cuomo, a former prosecutor and moderate Democrat, serving fixed terms. In February, Hochul chose Hector LaSalle from the commission list as her chief judge nominee. But the Senate later rejected his nomination, saying he was too conservative.

“Senate Democrats made very clear that judicial nominees need to fit a certain political agenda, regardless of the quality and ability of the candidate,” said Assembly Republican leader William A. Barclay (R-Pulaski).

Under the new proposal, a governor could consider a more diverse field, including more defense attorneys, civil rights lawyers and more women as well as people of color, said Noah Rosenblum, a professor at the New York University School of Law.

“It would be transferring a ton of power to the governor, which could be great if you’ve got a really thoughtful governor, but could be bad if the governor were using the nomination process to reward political allies or make patronage appointments,” Rosenblum said.

“Neither scheme is immune to politics,” said Jeffrey Fagan, a professor at Columbia Law School, “but there is more transparency with the governor nominating and the legislature approving.”

Other legal authorities questioned the proposal.

“It sounds like a bad idea,” said James A. Gardner, an expert in state constitutional law and a professor at the University at Buffalo. Under the commission, “the governor is constrained to picking someone who is qualified … not a hack.”

Gardner noted the federal process in which presidents install federal judges has long been criticized because the tone and philosophy of the federal judiciary can change with each administration. He also noted that some Republican governors have been accused of packing their state courts to protect their legislative goals.

“I don’t know why the state wants to go down this path,” Gardner said.

Vincent Bonventre of Albany Law School said the commission hasn’t eliminated politics from the selection process because governors have been able to make sure at least some of their favored candidates make the list.

“But this proposal would actually eliminate the thin filter that we now have,” Bonventre said. “At a minimum, the commission does seem to weed out the weakest possible nominates.”

Good-government advocates say the public needs the commission. Common Cause’s Susan Lerner called it “the last veil of judicial independence” and Blair Horner of the New York Public Interest Research Group said, “Any changes should be to further strengthen independence, not weaken it.”

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