An opportunity for diversity at the New York court of appeals

Almost 25 years ago, the state Court of Appeals decided Alison D. v. Virginia M., in which the court ruled that the petitioner, who had supported and lovingly co-parented a child from birth with her female partner for approximately six years, had no legal standing under state law to seek visitation rights because she was a “biological stranger” to their child.

That decision had a devastating impact on the LGBT community, whose families form critical parent-child bonds regardless of biology. The Court of Appeals is scheduled to revisit the issue in February. Whatever the outcome, the participation of an LGBT jurist would immeasurably benefit the legitimacy of the judicial process.

The state Commission on Judicial Nomination will soon provide Gov. Andrew Cuomo with a list of qualified candidates from which he will pick an associate judge of the Court of Appeals. Given the governor’s long record fighting for LGBT rights, it seems fitting that he have an opportunity to appoint a gay, lesbian or transgender judge to sit on that esteemed bench.

Though the U.S. Supreme Court’s decision last June extended marriage equality across the country, there remain many issues of vital importance to the LGBT community that will come before the courts for the first time. For example, Cuomo’s recently introduced regulations that ban harassment and discrimination against transgender people could generate litigation over the interpretation and application of those regulations.

Fundamental fairness, at the very least, requires LGBT involvement in that judicial analysis.

The call for judicial diversity echoes the basic principles of American democracy. It is grounded in the need for judges who can understand how different communities can uniquely experience the challenges of life and appreciate how the law may shape those experiences. As Assembly member Deborah Glick, who made history as the first LGBT member of the Legislature, argued, “New Yorkers need someone on the Court of Appeals who sees things through the eyes of the LGBT experience.”

Some believe otherwise. Jamie Whyte, a Cambridge University-trained philosopher, politician and businessman, argued that the judicial diversity movement “displays an alarmingly tribal view of the proper function of judges and a peculiar ignorance of legal history.” Whyte pointed out that the legal rights of women and blacks were granted by white, male judges, posing a rhetorical question: “How could this have happened if humans cannot transcend their identity prejudices?”

But the issue is not whether a homogeneous group of judges can transcend their identity prejudices; history tells us that they can. The real question is how long we must wait for them to “evolve.” Indeed, should a democratic nation be required to wait at all?

The answer, of course, is that we should not have to wait, and any contrary view rests on a fundamental misunderstanding of the judicial process. Judges do not interpret the law in the quiet solitude of their chambers, wrestling with their biases in isolation. They interpret the law through ongoing, robust and, at times, contentious arguments with litigants, and vigorous debates among themselves.

The call for judicial diversity is a demand to participate in those crucial adjudicative debates. It is about a democratic right of access, not outcome.

New York has a long and proud tradition as a melting pot. The integrity, strength and endurance of its government institutions continuously grow through the active participation of our diverse people. But participation requires access – and access to New York’s high court has, to date, not been fully granted.

Brad Hoylman is a New York state senator representing the 27th District.