Gay Absence on Judicial Panels

Legal forum blasts Pataki, Schumer and Bloomberg for their screening committees

Mayor Michael Bloomberg, Sen. Chuck Schumer, and Gov. George Pataki have failed to appoint any out lesbian, gay, bisexual or transgendered legal experts to their panels for screening candidates for the judiciary despite years of lobbying from a coalition of gay and non-gay legal groups. And between them, they have appointed a total of zero members of the LGBT community to the benches for which they are responsible.

The mayor appoints judges to the municipal and housing court. The governor is responsible for appointments to the appellate courts and the Court of Appeals, the state’s highest. Though Pataki, as a member of the president’s party, seems to have assumed the traditional senatorial prerogative of recommending federal court appointees to Bush, Schumer does maintain an active screening panel, something that Senator Hillary Rodham Clinton does not.

The Judicial Action Committee, formed four years ago “to increase opportunities to serve on the judiciary for self-identified lesbian and gay lawyers” has been working behind the scenes to get Bloomberg, Schumer, and Pataki to understand the need for out LGBT people on these panels and is now going public with their complaints.

“Everybody agrees that diversity is a key issue in judicial selection and that the judiciary has got to reflect the make-up of the community to be effective,” said Bob Bacigalupi, chair of the Judicial Action Committee. “There are a number of very powerful people who do not include gay people in their definition of diversity.”

The Lesbian and Gay Law Association of Greater New York, the Committee on LGBT Issues of the New York County Law Association, the Empire State Pride Agenda, and the LGBT Rights Committee of the Association of the Bar of the City of New York are among the groups petitioning public officials for more gay inclusiveness on judicial appointments.

The absence of LGBT people on the screening panels came to light at a forum on the merits of elected versus appointed judges sponsored by the Stonewall Democratic Club and other groups Tuesday night at the LGBT Community Center. The problem was raised with Zachary Carter, a former federal prosecutor, who chairs Bloomberg’s judicial advisory committee. Carter said, “City Hall is aware of this issue and is sensitive to it. I hope it will be corrected in the near future.”

While Bacigalupi is encouraged that Carter spoke at the panel, he said that he met with him a year ago about the issue and got the same response he gave this week.

In an interview, Bloomberg spokesperson Paul Elliott praised Carter and said, “We stand by his view and opinion.” Elliott said that “the mayor and this administration has a fairly good record on diversity in terms of race, gender, geography, and sexual orientation,” but could not explain why no out LGBT person has been included on the mayor’s screening committee. At the forum, Bacigalupi charged that some in the administration are hostile to the idea of gay people in terms of a minority group balancing a diversity in appointments on panels. Elliott responded, “Things have been improving since Michael Bloomberg became mayor in terms of these issues. It doesn’t hold true that there is hostility to making the most diverse appointments.”

Bloomberg appointed two prominent lesbian commissioners, Verna Eggleston at the Human Resources Administration and Martha Stark at the Department of Finance. He also appointed Matt Foreman, now director of the National Lesbian and Gay Task Force, to an unpaid position as a human rights commissioner. But a number of mayoral panels have included no LGBT representation, including the last Charter Revision Commission, although that body was diverse in terms of gender and race.

Michael Cardozo, the city’s corporation counsel, wrote Bacigalupi last March. “Obviously, not every diverse group of people in the City can find representation on a 19-member group,” wrote Cardozo, though he did urge LGBT attorneys to apply for judgeships in the same letter. Bacigalupi called Cardozo’s response “a bad excuse for not having an LGBT person because any minority could be from the LGBT community.”

Gov. George Pataki did not respond to letters from the LGBT legal groups, nor did his office return calls from Gay City News about his lack of gay inclusion in making appointments to the state’s appellate courts nor to any of his screening panels.

Martin Brennan from Senator Schumer’s office did call the New York County Lawyer’s Association’s Committee on LGBT Issues about their 2002 complaints about the lack of LGBT representation on the federal judiciary and the Senator’s screening panel. In a response to that call, the committee wrote Brennan about their “disappointment” at being informed that “Senator Schumer’s federal judicial screening panel is in place for the near future and that are no immediate plans to include LGBT representation in the selection process.”

In a written statement, Stu Loeser, a spokesman for Schumer, wrote, “Senator Schumer has three standards when considering candidates for lifetime appointments to the Federal Judiciary: excellence, moderation, and diversity. New Yorkers know that Chuck works hard every day to keep extremist ideologues off the Federal bench. Chuck’s success on this front is due in part to the excellent advice he gets from his screening panel.”

Out of nine hundred judges on the federal bench, there is one serving lesbian, Deborah Batts, who was appointed in 1994.

At the Center forum, the panelists were divided on the issue of electing versus appointing judges, but most had high praise for New York County’s hybrid system of putting candidates through independent screening panels before they face the party judicial convention. No other county uses such a reform system and the processes outside Manhattan, including the other boroughs and upstate, were derided as everything from “corrupt” to “disgusting.” The New York County Democratic Party requires at least three LGBT groups to be represented on their screening panel and has produced more out gay and lesbian judges than any county in the nation.

Alan Fleishman, a gay Democratic district leader from Brooklyn, said that reform on the selection process has to come from the state legislature “and I don’t see it happening.”

“No court should be exempt from reform,” said John Stackhouse, a Manhattan judge, who accused the mayor of “glaringly failing” in his lack of gay appointments.

Tom Smith, president of the Stonewall Club, said the Center panel was “polarized” on the selection process, but said the esteem for Manhattan’s hybrid process pointed toward the need for compromise on reform proposals.

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