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Opinion

For a Better Judicial Nominating Process, Support a Constitutional Convention


judicial swearing in de blasio judges

Mayor de Blasio swears in judges (photo: Ed Reed, Mayor's Office)


We need to change the New York State Constitution to curb corruption in our government, we simply cannot wait for our elected officials to make those changes for us.

Finding examples of corruption and self-serving behavior among our politicians in New York City and State is not difficult. It is part of all three branches of government - the legislative, executive, and judicial. In fact, New York has a judicial nominating process that has been condemned by Supreme Court justices. There is too much secrecy and politics in the process by which our judges are chosen, threatening to delegitimize our courtrooms.

Of the moment, this Summer New Yorkers are again witnessing the results of a judicial nomination process controlled by the political parties in Manhattan and Brooklyn. In Manhattan, Supreme Court Justice Doris Ling-Cohan was not recommended for reappointment by the Manhattan Democrats, and the party only allowed her to proceed to the nominating floor after party members and lawyers expressed their outrage. In Brooklyn, the Brooklyn Democratic Party declined the reappointment of Justice Laura Jacobson earlier this summer. Although there is much speculation regarding the political machinations that led to both of these experienced, well-regarded judges losing the Democratic Party’s support, we don’t know the actual reasons in large part because the process is shrouded by the private political organizations which make these decisions.

New York’s party control over the judicial nomination process is legal, and supported by our State Constitution. Current Surrogate Court Judge Margarita López Torres challenged the state judicial nomination process when the Brooklyn Democrats refused to nominate her for State Supreme Court in spite of her qualifications. She fought it all the way to the United States Supreme Court, and it was Justice Antonin Scalia who wrote the final opinion against her. She lost in a unanimous decision, but the Justices certainly did not endorse our State judicial nomination process.

In his opinion, Justice Scalia described the New York judicial nomination process and its criticisms. “In 1911, the New York Legislature enacted a law requiring political parties to select Supreme Court nominees (and most other nominees who did not run statewide) through direct primary elections. The primary system came to be criticized as a ‘device capable of astute and successful manipulation by professionals,’ Editorial, N. Y. Times, May 1, 1917, and the Republican candidate for Governor in 1920 campaigned against it as “a fraud” that ‘offered the opportunity for two things, for the demagogue and the man with money,’ N. Y. Times, Oct. 23, 1920.”

Justice John Paul Stevens, in a concurring opinion, went further and quoted Justice Thurgood Marshall, saying "The Constitution does not prohibit legislatures from enacting stupid laws." In spite of the 2008 decision’s emphatic condemnation, this is still the system we have today.
To be sure, we cannot completely eliminate the politics from choosing judges. However, we live in a democracy that values the impartiality and strength of its judiciary. We should do all we can to instill people with confidence that when they go into the courtroom, they are being heard by the most impartial decider possible. Nobody going through a messy divorce wants a political hack making a decision over which parent gets custody on an appeal. And no judge should have to worry about whether their decision on an election matter will risk their reappointment years down the line.

Let’s remove the judicial nomination process from the total control of the political parties. In most of the city’s boroughs, Democrats decide who gets on the ballot and those candidates win without any actual opposition due to their majority voting bloc. Our elected officials will never have the will to change this system because they have zero incentive to do so. The best way to achieve this reform is by voting “Yes” in November, 2017 to a Constitutional Convention and working out a better, less partisan, less tightly controlled process for nominating, voting on, and appointing judges in New York State.

UPDATE: On September 14, 15 members of the New York County Independent Screening Committee Panel submitted a letter stating that Justice Ling-Cohan merits continuation in office.

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Richard Semegram is a practicing tenant lawyer. On Twitter @richagram.

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'Excellence & Equity' Must Include Smart Approach to Top High Schools


de blasio edu speech bennett

Mayor de Blasio (photo: Rob Bennett, Mayor's Office)


As this school year began last week for over one million students, Mayor Bill de Blasio took advantage of the first day of classes to publicly highlight his efforts to improve the educational offerings of New York City schools. The mayor is now doing so under his banner “Equity and Excellence” agenda.

There is a long way to go. Currently, only about 38 percent of the students in our elementary schools are reading at grade level. About 70 percent of students graduate high school. Of those graduating, large numbers are not prepared to do college-level course work -- nearly 80 percent of our high school graduates attending CUNY community colleges must take remedial courses in reading, writing, and math.

According to one study, only students lucky enough to get into 34 of the system’s 428 high school programs that report graduation statistics have a decent shot at making it through college successfully.

To many, the challenges seem overwhelming. Because of their magnitude, I applaud Mayor de Blasio for recognizing the problems and trying to do something about them by adding pre-kindergarten, expanding course offerings, hiring more guidance counselors, and focusing on reading on grade level by third grade.

Unfortunately, instead of recognizing the outstanding performance of schools like Brooklyn Tech, which use a Specialized High School Admissions Test (SHSAT) as the criteria for gaining admission, the mayor also used opening day to bash these test-in schools by repeating debunked mythology about the need for multiple criteria to correct for a test that supposedly limits diversity.

Contrary to the mayor, according to NYU’s Research Alliance for New York City Schools, substituting multiple criteria for the test “would not appreciably increase the proportion of Black students admitted and alarmingly several of these alternative criteria would actually decrease the number of Black students offered” admission. The root problem for the demographic outcomes of the test, and the mayor’s initiatives recognize it, is that our school system provides unequal educational opportunities for many of the children in our city’s black and Hispanic communities.

Newsweek magazine recently published its annual list of the top high schools in the country doing an outstanding job of educating students from families qualifying for free and subsidized lunch, the criteria used in educational circles for measuring poverty. These schools are not only educationally exemplary – among the top 500 in the nation - but given the poverty levels of their student bodies, they are considered off the charts, so to speak, for producing college-ready graduates as measured by graduation rates and passing scores on Advanced Placement tests. New York City had five of the top ten schools in the nation on Newsweek’s “disadvantaged” list.

Of the five, four were test-in high schools, including Brooklyn Tech. Townsend Harris, which uses multiple admissions criteria, was the only other city school making the top ten list. Townsend’s admissions criteria include consideration of the applicant’s middle school grades in English, math, social studies and science; scores on state tests in language arts and math; and middle school attendance and punctuality. According to the Department of Education, black students make up only 5.6 percent of Townsend Harris’ student body. By comparison, black students at Brooklyn Tech are 7.5 percent of the student body. While Townsend is home to 64 black students, Brooklyn Tech educates 417.

The Brooklyn Tech Alumni Foundation, which I head, is working with Tech to increase the number of its black, Hispanic, and female students. We are in our third year of running a successful pilot STEM (science, technology, math and engineering) Pipeline program which targets underrepresented middle schools in Brooklyn. With the help this year of $250,000 from the New York State Legislature we doubled the number of students in our program. In the past, we have had great success and we hope to do more with this additional funding.

The Legislature also added money to fund programs at the other test-in schools, including Stuyvesant and Bronx Science, to reach out to middle schoolers from underrepresented communities and prepare them to succeed on the SHSAT and to do well at a specialized school once admitted.

Our efforts, along with the DOE’s, to improve diversity at the test-in schools are important. But more must still be done. The DOE should revive the Specialized High School Discovery Program, which is moribund at most of the test-in schools but is the legally available alternative mechanism for disadvantaged students to gain admission to these schools. Highly effective for promoting ethnic and racial diversity in the past, economically disadvantaged applicants just missing the cutoff scores took summer classes to demonstrate mastery of skills needed to do the advanced coursework required by these schools.

Because poverty rates are now roughly equal among black, Hispanic, and Asian families living in New York City, to be effective a revived Discovery program should also redefine “disadvantaged” to include attending a poorly performing or poorly represented middle school. Because of segregated housing patterns, this would help deal effectively with the educational inequality suffered by too many of the students in our city’s black and Hispanic communities.

The city’s school system is not fair. We all know that. But that said, four of the top ten schools in the nation for working class, immigrant, minority and low-income families are test-in schools here in New York City.

I applaud Mayor de Blasio and the DOE for continuing to work on improving educational excellence and diversity in our schools, but it does little good to attack a test giving every test-taker an equal and fair shot at gaining admission, especially since elimination of the test as the lone admissions factor would negatively affect diversity at these special schools.

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Larry Cary is a Manhattan lawyer and president of the Brooklyn Tech Alumni Foundation.

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Vigilance in the Fight Against Islamophobia


MMV Daneek Miller

Daneek Miller, left, & Melissa Mark-Viverito, the authors (photo: William Alatriste)


In New York, we have always embraced diversity. We strive to make sure that everyone feels welcome—no matter their race, faith, or background. This has never been more important for Muslim Americans, who have been the target of vicious political attacks during this election cycle.

This month, Muslim Americans across the country and in New York City will be celebrating Eid al-Adha. As our fellow community members observe this important religious holiday amidst a rising trend of Islamophobia, we must be mindful of their safety. Let us continue to set an example for strengthening our community and promoting open-mindedness.

Recently, Muslims have been the target of hate speech and violence in their homes, schools, neighborhoods, and places of worship. These verbal and physical attacks represent a broader trend of discrimination against Muslims.

According to the Bridge Initiative at Georgetown University, anti-Islam rhetoric in the United States has increased significantly during the current presidential election cycle. In fact, anti-Muslim attacks surged in the days and weeks after Donald Trump made anti-Muslim statements, suggested instituting a database to track Muslim Americans, and called for shutting down mosques. In recent months, organized, sometimes armed, protests against mosques have increased, as well as the targeting of Muslims for bullying or hate crimes.

This year’s presidential election has seen the candidate of a major political party not only endorse bigoted views, but also encourage the spread of these attitudes among his followers. Donald Trump’s message of bigotry has created a hostile climate against Muslims, immigrants, African Americans, Latinos, and women, dividing and weakening our communities. This marked increase in Islamophobia in the United States means that every day Muslims are unable to go about their daily lives without worrying about their personal safety. As we have seen with Imam Alauddin Akonjee and most recently with Nazma Khanam, Muslims are frequent targets of hate and violence. As a Latina legislator, as an African-American Muslim, we will not let any hateful rhetoric go unchecked and unchallenged. We have and will continue to stand up and speak out.

When an individual’s ability to publicly practice his or her faith is threatened, all of our liberties are at stake. We need to protect the freedom to practice faiths of all kinds and to educate others about diversity. That’s why the City added two Muslim holy days to the public school calendar in 2015, to ensure that all Muslim-American students can celebrate holidays together with friends and family.

Our fellow City Council members have also been very vocal about protecting the rights of Muslims in New York to practice their faith in peace and safety. Just last December, we helped organize a large interfaith rally on the steps of City Hall in coordination with other elected officials and faith leaders to denounce Donald Trump’s anti-Muslim and anti-immigrant remarks.

Despite challenges, our city will stand strong against these messages meant to divide us. Muslims continue to play important roles in our communities, contributing to the multicultural fabric of our city and our nation. Muslims are important figures in New York City arts, sciences, and businesses, as well as in public service – like Congressmen Keith Ellison and Andre Carson. Muslims are artists, teachers, doctors; mothers, fathers, and cherished members of their neighborhoods.

Institutionalizing Islamophobia only causes our communities to live in fear. This month, in the spirit of Eid, we must reject bigotry and collectively work together to spread awareness and hope. We have a responsibility to denounce discrimination and violence and to ensure that all communities can feel safe and respected in New York City. That is why, this Eid, we ask everyone in our broader community to do what they can to spread kindness instead of hatred, understanding instead of suspicion, and acceptance instead of close-mindedness.

Traveling across this city, whether to Bay Ridge or Midland Beach or Astoria, to connect with New Yorkers of all backgrounds and faiths has always been a highlight of serving in elected office. All of us are part of the New York City community, and we look forward to celebrating Eid together.

New York City is home to one of the most vibrant Muslim communities in the country. In order to continue preserving the values that make this city so special, we need to make sure that we are listening to the needs of Muslim-American New Yorkers.

Islamophobia has no place in New York City. Instead of embracing hateful rhetoric, we should be lifting up Muslim voices and sharing the stories of Muslim-Americans.

New Yorkers have always been stronger together. Together, we can work to protect and promote diversity and defeat Islamophobia.

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Melissa Mark-Viverito is the Speaker of the City Council and Daneek Miller represents parts of Queens and is the only African-American Muslim City Council Member. On Twitter @MMViverito and @IDaneekMiller.

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