Hochul has chance to reshape New York's high court, now that the chief judge is resigning
New York Governor Kathy Hochul will soon be appointing a new chief judge for the state, now that Janet DiFiore has announced she’s leaving at the end of the summer. Hochul has an opportunity to remake the court.
Judge DiFiore is the subject of an ethics probe over whether she interfered in a disciplinary hearing for the head of the New York State Court Officers Association.
She is the third highest ranking New York official in a year to leave under a cloud, following former Governor Andrew Cuomo last August, and former Lieutenant Governor Brian Benjamin in April.
DiFiore could have held her position at the Court of Appeals for another four years. In her weekly prerecorded COVID-19 update, she did not mention the ethics investigation in her reasons for her exit.
“As you probably know by now, I announced last week that on August 31 I will be leaving my position,” DiFiore said, adding that she would be pursuing "other professional opportunities.”
DiFiore said serving on the court was “the greatest honor and privilege” of her professional life.
DiFiore is accused of asking a disciplinary committee to punish Dennis Quirk, the president of the court officers association, after he threatened to make public details of her personal life. The committee was looking into a dispute between court leadership and the court officers group over COVID-19 vaccination requirements.
After DiFiore requested stiffer punishment, Quirk was suspended from his job.
Governor Hochul said she talked to DiFiore and accepted her resignation. She said the chief judge had a tough job keeping the courts functioning during pandemic-related lockdowns, and that DiFiore did it well.
“She presided over an extremely challenging time with the pandemic,” Hochul said. “And I thanked her for her service.”
DiFiore, a former district attorney for Westchester County and a former Republican who is now a Democrat, was chosen as chief judge by then-Governor Cuomo in 2016.
Before that, Cuomo had chosen DiFiore to serve as the executive director of the controversial Joint Commission on Public Ethics, or JCOPE. The commission, which is being replaced with a new ethics panel, was criticized for being too close to the former governor.
When Cuomo was accused of sexual harassment in late February of 2021, he requested that DiFiore lead a panel to investigate the charges. That idea was rejected by state Attorney General Tish James, who appointed her own investigators. Cuomo resigned after James’ report found he sexually harassed 11 women. Cuomo denies the allegations.
Under DiFiore, the seven-member court leaned more conservative than the court of her predecessors.
Albany Law School professor and Court of Appeals expert Vin Bonventre said the DiFiore court accepted far fewer appeals of criminal convictions than did her predecessor. Under former Chief Judge Jonathan Lippman, there were an average of about 100 a year. The annual average dropped to just 49 between 2016 and 2021.
“And in those cases, by and large, the court has been deciding them in favor of the prosecution,” Bonventre said. “In fact, very infrequently does the court ever rule in favor of the accused.”
Bonventre said under DiFiore’s tenure, the court overall is hearing far fewer cases. It has accepted for review just one-third to one-half of the number of cases than it did previously.
Hochul is under pressure from progressive groups to appoint a more left-leaning judge who is more open to the rights of defendants.
The Legal Aid Society said while it credits DiFiore for her efforts to improve the state’s court systems and improving its clients’ access to justice, the group urges Hochul to nominate someone who has served as a public defender or a civil legal services attorney who represented people from “historically marginalized communities of color.”
Albany Law School’s Bonventre said Hochul, who has appointed just one of the seven Court of Appeals judges, has an opportunity to reshape the court. He said state courts have become even more important due to recent U.S. Supreme Court actions, including overturning abortion rights and New York’s restrictions on carrying concealed weapons.
Bonventre said Hochul could double her influence if she elevates one of three more liberal members of the court to chief judge, and then chooses someone else to fill that person’s place.
“She can transform the direction of the court, she can transform the leadership of the court, she can transform the case load of the court,” Bonventre said. “She could make a pretty dramatic change in our high court.”
The governor said she wants to find a judge who is fair, not someone who comes from a particular background or political ideology.
“I want to get the best jurist I can find in the state of New York,” Hochul said. “Regardless of any predispositions.”
Hochul does not get to directly pick someone to fill the spot. The state’s Commission on Judicial Nomination over the next few months will pick up to seven people who would be qualified to replace DiFiore. The governor then chooses a nominee from that list and presents that person to the state Senate for approval.