There has been much discussion of Chief Judge Janet DiFiore's proposal to consolidate New York's inordinately complex court system, particularly how that proposal, if enacted, would affect judicial diversity. Dan M. Clark, NY Lawmakers Eye DiFiore's Court Reform Plan for Impact on Judicial Diversity, NYLJ, Nov. 13, 2019, at 1. In my view, we should embrace the consolidation proposal on its merits, because it is an inherently valuable plan to simplify what is one of the most rigid, non-responsive, and Byzantine court systems in the United States. Yet some have opposed or questioned this plan indirectly, by raising another important value—judicial diversity—that they believe would not be well served under the current proposal.

I write to address this concern by highlighting the value of judicial diversity, noting the advancements we have made thus far, explaining how the current proposal has the potential to positively impact diversity, and urging those who question its impact to accept the Chief Judge's invitation to make specific proposals that would further increase judicial diversity while streamlining our antiquated, labyrinthian court structure. We cannot allow the perfect to be the enemy of the good; even if the merger proposal would have a neutral impact on diversity, it is worthy of our support. Accordingly, those who think the proposal does not adequately address diversity should offer amendments, rather than reject the proposal outright, so that we may continue on the road toward a more easily navigable and truly representative judicial system.

Why We Need a Diverse Judiciary

Diversity and inclusion are not just trendy terms that are increasingly used in the legal profession; they are at the heart of promoting fundamental justice and respect for democratic institutions and the rule of law. It is, therefore, difficult to overstate the importance of ensuring that our judiciary reflects the makeup of the citizenry. For one thing, diversity on the bench lends credibility to a justice system that underrepresented groups, such as women and people of color, have historically viewed with suspicion and distrust. There is a tremendous need for citizens to see themselves reflected in the judges who serve them, because "[a] diverse judiciary engenders confidence that courts—the last bastion of justice—have the requisite moral authority to dispense justice to all." Rolando Acosta, Justice's "Gorgeous Mosaic," NYLJ, Nov. 14, 2005, at 4 (hereinafter Justice's "Gorgeous Mosaic"). As former Chief Judge Judith Kaye put it, "a diverse bench gives the public a feeling of inclusion in the justice system, willing to place its trust and faith in it, not alienated from it." Archibald R. Murray, Judith S. Kaye, et al., The Road to the Judiciary: Navigating the Judicial Selection Process, 57 Alb. L. Rev. 973, 975 (1994). NYSBA President Henry M. Greenberg recently reiterated a similar sentiment, saying that "[i]f the judiciary doesn't change [along with demographic changes], we risk undermining the public's confidence in our justice system and respect for the rule of law." Court Consolidation: Joint Hearing Before the New York Senate and Assembly Standing Committees on the Judiciary (Nov. 13, 2019) (hereinafter Court Consolidation Hearing) (statement of Henry M. Greenberg, President, New York State Bar Association). I could not agree more.

In addition to strengthening public trust in our institutions, a diverse judiciary improves the adjudicative process, because the presence of jurists of various backgrounds "can introduce traditionally excluded perspectives and values into judicial decision-making." Sherrilyn A. Ifill, Racial Diversity on the Bench: Beyond Role Models and Public Confidence, 57 Wash. & Lee L. Rev. 405, 410 (2000). Justice Joseph A. Zayas, Administrative Judge of Queens Supreme Court, Criminal Term, has posited an interesting argument by way of analogy: Just as the Sixth Amendment requires that juries be drawn from a "fair cross section of the community" (Taylor v. Louisiana, 419 US 522, 527 (1975)), so too should judges be fairly representative of the communities in which they administer justice (Joseph A. Zayas, Lack of Latino Representation on the Bench, NYLJ, Oct. 3, 2018, at 6 (speech adapted for written publication)). This is because "judicial diversity brings a variety of experiences and views to the bench, which … trickles down to the [legal and] factual decisions that [judges] make and ultimately to the quality of justice that we dispense." Justice's "Gorgeous Mosaic," supra.

In short, judicial diversity not only legitimizes the third branch of government in the eyes of its citizens, it also brings us closer to achieving true, impartial justice in every case.

So, How Far Has New York Come?

When I first became a lawyer in the early 1980s, there were very few judges in New York who looked like me. A photograph I keep in my chambers depicts all the Latino judges in our state in 1985; there are only 13 judges in that photograph. Now, nearly 35 years later, there are approximately 90 Latino judges in New York.

This is progress, but it is not enough—for Latinos or for other underrepresented groups. We must remember that diversity applies to (and benefits) all of us, not just Latinos or another particular community. As Martin Luther King Jr., wrote, "Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly." Martin Luther King Jr., Letter From a Birmingham Jail 2 (1963). It is a matter of fundamental justice to attain fair representation in the court system, so that "the public—our gorgeous mosaic, to quote David Dinkins—[may] look[] at the mirror of justice and see[] itself in it." Justice's "Gorgeous Mosaic," supra.

Yet, although New York is one of the most diverse states in the country, as of December 2014 our state ranked 24th in judicial representativeness with respect to ethnic and racial diversity, and 14th with respect to the proportion of women on the bench. Tracey E. George and Albert H. Yoon, American Constitution Society, The Gavel Gap: Who Sits in Judgment on State Courts? 21, 24. Presently, according to statistics collected by the New York State Unified Court System's Office of Court Administration, Latinos represent nearly 20% of the population in New York but only 7% of the judiciary (of the more than 1,270 judges, there are 90 Latinos). Similarly, African Americans make up approximately 18% of the state's population but only 13.7% of its judges, and Asians make up 9% of the population but only 2.7% of judges. Women make up 51% of the population but only 41% of judges, and LGBT people make up only 4.3% of the judiciary. By contrast, Caucasians make up approximately 55% of the state population; yet Caucasian judges make up 76.3% of New York's judiciary.

The Appellate Division is slightly more reflective of the population in New York, but is still not fairly representative of the population it serves: Of the 53 Appellate Division Justices, 6 are Latino (11%), 8 are African American (15%), 2 are Asian (3.8%), and 37 are Caucasian (70%). Despite recent progress in this regard, it is not uncommon to have appeals decided by all-white panels of appellate judges (particularly in the Third and Fourth Departments, where there are still no Latino or Asian Justices), something we would never tolerate on state juries, especially in our more diverse parts of the state, like Albany, Buffalo and Rochester.

Upstate, the numbers are startling. Among Supreme Court Justices outside New York City, for example, only 29% are women, 6.5% are African American, 1.4% are Latino, and zero are Asian. By contrast, 91% are Caucasian. Additionally, 100% of Surrogate's Court judges outside NYC are Caucasian, and 75% are men.

Simply put, despite significant progress, our great state still does not have a fairly representative, sufficiently diverse court system. Or, as the NYSBA noted in 2014, "New York State has one of the most diverse populations in the United States, but the rich multiracial, multi-cultural tapestry of New York's people is not adequately reflected in its judiciary." New York State Bar Association, Judicial Diversity: A Work in Progress 3 (2014). Unfortunately, that description of our state still holds true today.

Would Court Consolidation Improve Diversity?

The short answer is "yes," but there is more to the story. Under the proposal, the state's 11 different trial courts would be merged into three: the Supreme Court, the Municipal Court, and the Town and Village Courts. As part of this merger, judgeships that traditionally have been more attainable for judges of diverse backgrounds (e.g., single- rather than multi-county elected seats and the Family Court and Surrogate's Court in NYC) would be absorbed by the Supreme Court, thereby increasing the number of Supreme Court judgeships held by underrepresented groups. Court Consolidation Hearing (statement of Hon. Lawrence K. Marks, Chief Administrative Judge, New York State Unified Court System).

Importantly, this would result in a broader, more diverse group of judges that could be elevated to the state's intermediate appellate court: the Appellate Division. As Chief Administrative Judge Lawrence K. Marks recently stated, "[m]aking the county level judges—the family court judges, the surrogate judges and the county judges—Supreme Court Justices … would provide more judges of color on the Supreme Court and allow the governor a wider group of judges to pick from, to be able to make diverse appointments to the Appellate Division." Court Consolidation Hearing (Marks statement, supra). This view is shared by former Court of Appeals Judge Carmen Ciparick—the first Latina to be appointed to our state's highest court—who said that the merger would generate "an increase in numbers from which an appointing authority, a governor, can select future members of the Appellate Division." Court Consolidation Hearing (statement of Hon. Carmen Beauchamp Ciparick, Former Associate Judge, New York Court of Appeals). This is critical, because the Third and Fourth Departments, in particular, are not fairly representative of our diverse state, perhaps due to a dearth of diverse Justices on the Supreme Court in those Departments whom the Governor could appoint to the appellate courts. Court Consolidation Hearing (Marks statement, supra). In fact, the lack of diverse Supreme Court Justices upstate led the Governor in 2016 to reach into the Bronx to diversify the Third Department's bench. Christine Simmons, Appellate Division Appointments Bring Relief to Courts, NYLJ, Feb. 22, 2016.

To be sure, court consolidation would not, in and of itself, diversify the upper echelons of our court system. And some have argued, correctly, that merger would actually dilute diversity in the trial courts, because it would add Caucasian judges as well as judges of color to the Supreme Court. However, the consolidation proposal would inarguably increase the pool from which Appellate Division judges are appointed, thus creating an opportunity for the appointing authority to further increase diversity on the appellate bench. At present, we have a Governor who has appointed more diverse appellate judges than any other Governor in our state's history. Alphonso David, Governor's Counsel Says Cuomo's Record on Appointing Diverse Judges Is Exemplary, NYLJ (Online), Jan. 23, 2018 (noting that "more than 60% of Gov. Cuomo's judicial appointments have been racial and ethnic minorities and women," that "[h]e is the first and only governor to appoint black judges to every single appellate division in the state," and that "[h]e appointed to the [Court of Appeals] the first black woman, the first openly LGBT person and the first Hispanic man"). I am confident that he would continue in that fashion going forward. His successors, whoever they may be, should be similarly encouraged to increase diversity in our judiciary. This could be accomplished by, for instance, a clear policy statement in the consolidation proposal's preamble that unequivocally recognizes the value of diversity, and a biennial reporting requirement or other mechanism by which the authorities involved in appointing and electing judges would be held accountable for achieving the goal of increasing diversity in the courts.

There is much more work to be done, and the merger proposal is not a silver bullet. However, it has the potential to help further diversify New York's appellate bench while making the courts more accessible and navigable for everyday New Yorkers, many of whom are underrepresented minorities and poor litigants who attempt to navigate the justice system without an attorney. (This explains why the court consolidation proposal has earned the support of The Legal Aid Society and other poverty law organizations (Press Release, Chief Judge Proposes Constitutional Reforms to Simplify Outdated Court Structure, Aiming to Enhance Access, Optimize Resources, NYS Unified Court System, Sept. 25, 2016).) For these reasons, those who appreciate the critical need for our "gorgeous mosaic" to be fairly represented on the bench would be wise to put forth any necessary amendments and support the Chief Judge's proposal to consolidate the courts.