Insight on New York's New Chief Judge

DAN CLARK: Governor Kathy Hochul now has less than a week to announce her pick for a new Chief Judge. That's after former Chief Judge, Janet Difiore, resigned over the summer. Since then, an independent state commission has put together, by law, a short list of candidates for the job, and it's an important one. The Chief Judge of New York manages an entire branch of state government, the state court system, and they also lead the state's highest court, the Court of Appeals. It's a big job that could have a big impact on the state. For a preview, I spoke this week with Brian Ginsberg, an appellate attorney who has argued at the Court of Appeals and who is a partner at the law firm Harris Beach. Brian, thank you so much for coming on this week. I appreciate it.

BRIAN GINSBERG: My pleasure. Thanks for having me.

DC: Of course. Anytime. So we have the short list of finalists for our new Chief Judge in New York, and I want to see your takeaway first. What did you think of the list?

BG: Well, my takeaway is that it's a very impressive list of finalists that the Commission on Judicial Nomination has put together. Folks from diverse professional backgrounds, all of whom, in my view, have ample judicial skills and temperament to do the job of adjudicating cases on the Court of Appeals, and also all folks who have a variety of experience leading different types of large organizations. In some cases, very busy appellate courts, who would be well suited to the managerial work of the Chief Judge as well. Of course, the official title there is not simply Chief Judge of the Court of Appeals but Chief Judge of the State of New York, and any of the folks on this impressive short list would be well poised to lead the New York State Unified Court System.

DC: We have seven different people with seven very different career trajectories in some cases. I'm wondering if anybody stood out to you in particular on this list. To me, you have Hector LaSalle, the presiding justice from the appellate division’s second department downstate. That one jumped out to me, but I'm curious to see if anybody you think has a better chance than others.

BG: It's hard for me to pick a frontrunner based on this list. Justice LaSalle is certainly very impressive. As are the other six members of the list. I think in each of the candidates' own way, they make a very compelling case for being nominated and confirmed as the next Chief Judge of the State of New York.

DC: How do you think this changes the court? We don't know how long this person would serve. Of course, it would depend sort of on their age. There's a mandatory retirement age of 70 for judges in New York state. So we don't know how long this person would be in the position, but can you describe for our viewers who are kind of new to this what kind of impact a new Chief Judge has on the court system and the Court of Appeals?

BG: Well, I think a new Chief Judge could really have a profound impact on the court of appeals. The Chief Judge, like all judges of the Court of Appeals, gets a vote in deciding cases that come before the court, ruling for one side or the other. Also importantly, the Chief Judge like the other judges gets a vote as to what cases the court decides to accept in the first place. The Court of Appeals is unique among courts in the state of New York, and decides what cases it wants to hear. Unlike for cases ajudicated on the merits, where it generally takes four votes to rule in favor of one side in terms of filling up the court's docket, it only takes the vote of two judges and in a criminal context, only one judge to place a case on the court of appeals' docket for later decision through a process called granting leave, and there are no bright line rules for when leave should or should not be granted. It's really in the eye of the beholder to a large extent. For that reason, the next Chief Judge, in addition to having a large impact on the cases that come before the court, will have a very large impact on deciding what cases come before the court in the first place.

DC: You know, you're a practicing attorney, obviously, a partner at Harris Beach. What do you think are the major challenges for a Chief Judge coming into the state court system right now? We just come out of a global pandemic that affected the courts quite a bit. We've also seen former Chief Judge Janet Difiore change the trajectory of the Court of Appeals in certain ways and also have major initiatives for the state court system. So what do you think should be this person's priorities coming in?

BG: Well, I certainly think from a programmatic standpoint, the next Chief Judge, like the prior Chief Judge, will have to focus a lot on sort of systemwide issues, making sure the courts and courthouses are accessible to all, making sure that New Yorkers, no matter what their stature, have adequate access to justice, but beyond that, the next Chief Judge, like the prior Chief Judge, will have the main duty of ensuring that cases are decided according to the rule of law. In my view, I think the prior Chief Judge, did an excellent job of that, and I think any one of the candidates on the shortlist would do an excellent job of that as well, deciding cases that come before them based upon an application of the law to the facts without regard for external factors like power or politics or popularity.

DC: One issue that has come up during the selection process is that a lot of advocates would like to see the governor nominate a new Chief Judge who has some practice in defense rather than prosecution. We do see a number of judges on that bench right now who have a history of prosecution rather than defense. What do you think about that as somebody who is familiar with this court? How would that change it?

BG: Well, I think that it's obviously Governor Hochul's prerogative to nominate whomever on the shortlist she feels would make the best Chief Judge of the State of New York, but I reject the view advanced by some interest groups that folks who have prior experience as prosecutors or who have already served in judicial roles and have decided certain cases in certain ways are  preemptively disqualified from becoming the next Chief Judge. In my view, judges often have to make unpopular decisions. Their job is to apply the law to the facts wherever that may lead, and excellence in a prior position as a prosecutor, I don't believe would impact the judge's ability to apply the law to the facts in a straightforward way on the court of appeals. I think all of these candidates have a variety of backgrounds. Some who have prosecutorial experience also have experience on the defense side and there are other folks who have experience outside the practice of law entirely. I think whoever is selected will bring that important professional diversity to the Chief Judge role.

DC: All right. We will see how it shakes out. Brian Ginsberg, an appellate attorney, and a partner at Harris Beach. Thank you so much.

BG: Thank you.

THIS INTERVIEW IS A TRANSCRIPT OF THE ORIGINAL BROADCAST VERSION OF THIS CONVERSATION AND HAS BEEN EDITED FOR CLARITY.