Judicial Reports: Robes in the Closet?

By Jesse Sunenblick

Posted 11-03-06

As states increasingly wrestle with the debate over gay rights, the recent same-sex marriage decision by New York's highest court (and another by New Jersey's) raises an interesting question about judicial selection reform: Will it increase or decrease the number of gay judges who write those rulings?

Paul Feinman would be excused if he felt his pocket had been picked.

Since 2001 Feinman, an Acting Supreme Court judge in New York County, had been inching closer to judicial history: seeking to become the first openly gay man elected to the New York State Supreme Court in almost 20 years.

Building up his constituency after twice being approved by the Democratic Party’s screening panel, Feinman thought he would get his party’s nod for the next Manhattan vacancy, in 2007. But in early 2006 federal judge John Gleeson declared the state’s judicial convention system unconstitutional.  

So instead of trawling for support at the umpteen Democratic clubs that send delegates to an essentially fixed judicial convention, next year Feinman and other Supreme Court aspirants will likely face an expensive shoe leather popularity contest otherwise known as a primary.

Although that might level the playing field for many challengers who were previously blocked by the insularity of the party machine, consider this little-noticed disadvantage peculiar to the gay community — a handicap that has been made more stark by the New York Court of Appeals’ recent denial of marriage rights: Under election law, married candidates can receive unlimited spousal donation. Under the Gleeson ruling, this extends a disadvantage already present in district-wide Civil Court campaigns to the Supreme Court, whose countywide races are necessarily more expensive, and where gay candidates will have to ply for votes outside their constituents’ home base.

Beyond that imbalance lies the new challenge faced by all judicial candidates who previously have not had to face the expensive rough-and-tumble of elections.

“As of now I intend to run,” said Feinman. “But I’d have to sit down and seriously consider whether I want to make that commitment. Up until now, it’s not like you’d actually have to talk to somebody about how to do direct mail. It’s a whole different scale: You’re going from a couple thousand dollars to perhaps hundreds of thousands.”
                                                
“The consequences will be catastrophic,” said attorney Bob Bacigalupi, chair of the Judicial Action Committee, a gay rights judicial activist group. In 2000, that organization got the first self-identified lesbian, gay, bisexual or transgender (LGBT) person — Proskauer Rose partner Peter Sherwin — onto the mayor’s Advisory Committee on the Judiciary, which recommends appointees to New York City’s lower courts.

“The Gleeson decision reflects somebody coming upon this jerry rigging system and being appalled,” Bacigalupi continued. “But now, if there are primaries, every judge will have to run an expensive campaign. And if it goes to a ‘merit’ system, all minorities are in danger, because minorities can impact politics more than they can infiltrate the city bar,” which would play more of a role in establishing a future candidate’s credibility.

Gleeson’s ruling essentially told state legislators that they had three choices: Clean up the existing system, create open primaries, or construct a so-called merit-based appointment system somewhat similar to the way federal judges are nominated by the President and confirmed by the U.S. Senate. (Under the state Constitution, creation of an appointive system would likely take a few years to enact, during which time one of the other systems would have to be in place.)

Ironically, it is precisely the Byzantine regime that the influential gay political base had used to make inroads, albeit slowly, into the Democratic Party’s screening panels that “report” out candidates for Civil and Supreme Court vacancies. For more than 20 years these panels have had permanent representatives from gay interest groups, a testament to the clout of Manhattan’s four main gay political clubs, from which judicial candidates passionately solicit support every year, according to Daniel R. Schaffer, administrator of LeGaL, the Lesbian, Gay, Bisexual and Transgender Law Association of Greater New York.

Currently, three elected lesbians sit on the Supreme Court; no openly gay or lesbian judges sit on any of New York’s appellate courts.

Of course, in a system that operates through handshakes in smoke-filled clubhouses, even qualified gay candidates who are reported out of Civil and Supreme Court screening panels mysteriously “drop out and wait till next year,” said a former officer of the Village Independent Democrats. That would occur — as it often did for new candidates of all backgrounds or orientations — after they had been patted on the back and told that Assemblyman Denny Farrell, the Democratic Party leader in Manhattan, had a different favorite that year.

Still, in Manhattan, the old system has paid dividends for gays. Recently, the New York City Bar Association’s Judiciary Committee, which screens virtually every judicial candidate in New York City, added its first openly gay member: attorney Edward Davis (although the appointment is not permanent). And Bacigalupi calls the Manhattan Civil Court, with its seven openly gay and lesbian elected judges — four of whom are Acting Supreme Court Justices — one of the more gay-friendly courts in America.

Also, although the Supreme Court lacks many elected members of the LGBT community, some observers argue that this might have resulted more from what are effectively lifetime terms for sitting judges, who enjoy nearly guaranteed reappointments.

The advent of open primaries has brought a mixed response from party leader Farrell.

“This is going to cost a lot of money — it’s going to cause more damage,” he said. “Politically, as a county leader, I should be very happy, because now judges will have to ‘love me up,’ especially the sitting judges seeking reappointment, who in the past didn’t have to be involved in politics. That’s going to be a lot of fun.

“But the problems that come with it are not worth it,” he continued. “I think gays are more vulnerable. People are worried about gays getting married. That’s why my ‘Republican friends’ try to play it up. It’s not going to be blatant outright homophobia — it’s going to be subtle homophobia.”

The first openly gay man to join the bench in New York was William J. Thom, who was appointed by Mayor Ed Koch to fill an interim vacancy on the Civil Court in 1984. (Thom was twice defeated in subsequent primary elections.) A year later Koch appointed Dick Failla — an openly gay man — to Manhattan Criminal Court, and in 1988 Failla became the first gay judge to gain the Democratic Party’s nomination and be elected to Supreme Court. (He died from AIDS in the early 1990s).

“I supported him to help him get on the bench,” said Farrell. “I went around and told people, ‘This is my candidate, this is who I’d like to see on the bench.’ The screening panels may deal with qualifications, but I deal with politics.”

“It was very lonely out there,” said Marcy Kahn, who in 1987 became the first open lesbian to become a judge in Criminal Court (in 1995 Kahn was elected to the Supreme Court in Manhattan). “In some quarters I was viewed as an anomaly. People wondered what would happen. But I think what we’ve seen over the years is probably not much different from what other minorities have seen. As our numbers increase and people in the courts have come to know more lesbian and gay judges, and worked with us, they see that our lives are not that different from anybody else’s.”

Today, the New York State court system counts eight gay male and 13 lesbian judges. Since Failla, no other gay man has been elected to the New York State Supreme Court, although Jack Battaglia, an openly gay Civil Court judge in Brooklyn, seems assured of election to the Brooklyn Supreme Court this November.

The circumstances surrounding Battaglia’s nomination, however, point more to political hobnobbing than to inroads in the culture wars: His sister, Angela, is the girlfriend of Brooklyn Democratic Chairman Vito Lopez.

“People often ask me if I always wanted to be a judge,” said Feinman. “And I say, after law school I did not think it was possible. Being an openly gay man, it wasn’t something I considered a career possibility.”

Feinman started a gay student group at the University of Minnesota Law School in the early 1980s. He also helped prohibit the military from recruiting on campus in the days before Congressional legislation decreed that such bans would cost schools federal funding. But the school’s placement office advised him to remove such evidence of his sexual orientation from his resume.

“It’s not advice I followed,” said Feinman.

In 1996, Feinman became the first openly gay man elected to Civil Court in New York State, after he beat Elizabeth Shollenberger, a longtime district leader in Greenwich Village, by a slim 24-vote margin. (In 1990, Shollenberger had lost to another gay candidate, Deborah Glick, in her run for State Assembly.) Previously, Feinman had worked as a law secretary to Appellate Division Justice Angela Mazzarelli in Brooklyn. According to his campaign manager, Joanna Saccone, Feinman’s rapid rise through unfamiliar terrain is a testament to the growing power of Manhattan’s gay political base.

“Certainly being gay helped him,” Saccone said. “When you have a man who is openly gay, the first one ever running for Civil Court in the Village, which is an extremely liberal, diverse kind of place—people are going to rally around that.”

In large measure, Feinman benefited from the support of three political clubs—the Gay and Lesbian Independent Democrats, the Village Independent Democrats, and even the Chelsea Reform Democratic Club (although the latter wasn’t in his district). The Gay and Lesbian Independent Democrats, the oldest gay political club in Manhattan, featured two iconic leaders — Assemblywoman Glick and City Councilman Tom Duane (now a state senator) — whose support has been instrumental to Feinman and other gay judicial candidates.

“More and more, the endorsements of gay clubs, for gay and non-gay candidates, is considered a pot of gold,” said openly gay former City Councilman Antonio Pagan, who assisted with Shollenberger’s campaign. “It sort of makes a candidate more appealing to the liberal voter.”

“It’s almost impossible to win in Manhattan without the support of LGBT voters,” said Alan Fleishman, a Brooklyn Democratic Party district leader who helped add gays and other minorities to (subsequently disgraced) party boss Clarence Norman’s formerly clandestine screening panel. “They’re a key voting block, there’s no question about that. All of the rich Manhattan neighborhoods have big gay populations in them. And almost every major political club has a gay person who’s prominent. In Brooklyn we have some, out of the brownstone communities. We’re awakening to the fact that there is a decent-sized gay and lesbian community, but Manhattan is light years ahead.”

The push for an elected gay Supreme Court justice resonates with a larger goal of Manhattan’s gay community: the appointment of openly gay and lesbian judges to the state’s Appellate Division and Court of Appeals and onto the screening panels that appoint them.

In the wake of the Court of Appeal’s July 2006 verdict in Hernandez v. Robles (denying the right of gays to marry under the New York Constitution), gay activists are planning to pursue gains statewide. Gay activists' hopes are further buoyed by the presumptive gubernatorial election of Attorney General Eliot Spitzer, who has endorsed the legalization of gay marriage in New York.

“In 12 years of being governor, George Pataki named 305 judges, and not one was openly lesbian or gay,” said Richard Burns, executive director of Manhattan’s Lesbian, Gay, Bisexual and Transgender Community Center. “In 12 years that Mario Cuomo was governor, he nominated one openly gay judge, who wasn’t confirmed.”

Added Burns: “There will be three openings on the Court of Appeals in the next few years. We all have to start thinking about this.” (According to Bacigalupi, the departures of Chief Judge Judith S. Kaye and Albert M. Rosenblatt are imminent, while the departure of Carmen Beauchamp Ciparick is possible soon.)

In addition to running the Judicial Action Committee, Bacigalupi is in the process of helping to create a committee to lobby Spitzer to add an LGBT member as one of the four gubernatorial appointments to the 12-person judicial nomination committee, the appointment body for the Court of Appeals. (To be considered for the Appellate Division, a judge must have been elected to the Supreme Court.)

“Really, I think this all came up when they lost Hernandez,” Bacigalupi said. “I think it kind of woke everyone up: Here are all these straight judges deciding this issue.”

According to Bacigalupi, such representation on the bench is more about sociology than jurisprudence.

“I don’t think gay candidates have qualities that make them special. It’s significant that self-identified LGBT people sit on the bench so that the community it serves sees itself reflected — from who’s sitting on the bench. It’s very difficult to have faith in a system that is intentionally excluding you . . .  and I think that’s true with any minority.”

That said, the line between sociology and jurisprudence might be fairly fine. In Hernandez, the Appeals Court reached the controversial conclusion that the legislature could use “intuition” to arrive at the idea that a child benefits from being reared by heterosexual parents.

“The fact that the court said the legislature could do so based on intuition was, frankly, profoundly hurtful to thousands of families living in New York today,” said the plaintiff’s attorney in that case, Roberta Kaplan. “Replace the words ‘gay and lesbian families’ with African-American families, or Hispanic, and you see how unacceptable it is.”

If there had been a gay judge on the court, Kaplan said, this language might well have been changed. In the immediate future, the gay marriage case has been sent to the legislature. But for gay activists, it’s not the only issue of concern.

“Marriage is just one thing,” said Kaplan. “It brings with it a thousand rights and privileges, the vast majority of which haven’t been legislated in New York State: the right of same sex couples to determine medical care after something happens; rights to health insurance; the right to buy a home or take out a mortgage together. This isn’t the end of the story in the courts. These cases will be litigated case by case by case, and at some point I think what Chief Judge Judith Kaye said in her dissenting decision will come to pass — that the courts were just wrong here.”

Feinman and others believe that righting such wrongs will require that more members of their community are writing those decisions.
Posted by Dirk on November 3, 2006 02:23 AM to Judicial Reports