December 30, 2008 3:38 PM

Women Partners Weigh in on Chief Justice Controversy

Posted by Rachel Breitman

With New York chief judge Judith Kaye set to serve her last day on the Court of Appeals on Wednesday, it's still unclear who will replace her. One thing is certain, though: it won't be another woman.

While Governor David Paterson has until January 15 to pick the next chief judge, he's already expressed his ire over the total absence of women from the list of seven finalists from which he must choose. And
the governor wasn't alone in viewing the list as a bittersweet coda to Kaye’s tenure as both the first woman to sit on the state's highest court and, later, the first to serve as its chief judge.

Among top women partners interviewed by The Am Law Daily, opinions varied about why the Commission on Judicial Nomination wound up with an all-male slate. Some questioned whether it gave female applicants short shrift. Others questioned if enough women had even sought the job to begin with.

“There definitely were women interested in the position, and it is striking that there were no women on the recommended list,” says Mary Jo White, chair of the litigation practice at Debevoise & Plimpton, and the former U.S. Attorney for the Southern District of New York.

White added, however, that beyond the two widely publicized female applicants -- Court of Appeals Senior Associate Judge Carmen Beauchamp Ciparick, and Civil Court Chief Administrator Judge Fern Fisher-- she was unaware of any women, either from the judicial ranks or from private practice, who had sought to go through the highly secretive screening process.

Though the commission made applications available to both men and women lawyers via newspaper postings, bar associations, law schools, and law firms, some women partners guessed that the chief justice job's considerable administrative duties--and relatively low pay--may have made their peers at big firms apprehensive about considering the job.

"I think it would be very unusual for a woman who is not a judge to apply to be chief justice," says Ann Berger Lesk, the head of Fried, Frank, Harris, Shriver & Jacobson’s  New York trusts and estates and president of the New York County Lawyers' Association. "Being chief judge involves both what the public thinks of as the judicial role and being in charge of the administration in the New York Court system."

Kaye--herself a partner at the now-defunct Olwine, Connelly, Chase, O'Donnell & Weyher before then-Governor Mario Cuomo tapped her to join the Court of Appeals as an associate judge in 1983--admitted at a recent Bar Association conference that she hesitated when first faced with the application. 

Another possible factor steering women law firm partners away from applying: It's been more than a century since someone not already sitting on the bench was installed as chief justice.  But this fact didn't stop three of the current finalists -- George Carpinello, from Boies, Schiller & Flexner, Evan Davis, from Cleary Gottlieb Steen & Hamilton, and Peter Zimroth, from Arnold & Porter -- from making it to the final slate.

Whether or not women partners were ready to take a similar leap of faith, few names of interested partners had surfaced through the legal grapevine. 

“I didn’t know any women in private practice who applied, and no one asked me to be her reference,” says Bettina Plevan, a partner in Proskauer Rose’s labor and employment law department, a member of the firm’s executive committee, and a former New York City Bar Association president.

Plevan says she was sent an application this year, but decided not to fill it out: “A lot of people have an interest in doing the kind of serious cerebral work, but may not have an interest in the administrative role and the extensive travel of being chief justice.”

Plevan noted--ironically, given the recent debate--that there is already a larger percentage of women sitting on the state bench than there is inhabiting the partnership suites of New York City firms. Until Kaye, who was age-limited on the bench, is replaced, the Court of Appeals will be equally divided: three men, three women.

Still, many remained unsatisfied with the ledger of all-male nominees. 

“It is hard to imagine that there was not one qualified woman who appeared before the commission,” says Sheila Birnbaum, the cohead of Skadden, Arps, Slate, Meagher & Flom’s complex mass tort and insurance group. “But I am not sure how critical one can be because we don’t know how many women applied and were turned aside."

In response to the criticism that has dogged the judicial commission since it announced its picks, chairman John O’Mara, a partner with Davidson & O'Mara in Elmira, New York, made public a letter defending the panel's work that he sent to Paterson on December 17.

Paterson himself remains dissatisfied with the breadth of finalists from which he must choose.

“What the governor has previously said still stands,” Paterson spokesman Morgan Hook tells The Am Law Daily. “He was disappointed that the process didn’t produce a pool of candidates that were more reflective of the greater population of New York.”

Lesk noted that New York County Lawyers has previously advocated the use of a more diverse judicial screening panel for Court of Appeals candidates--one appointed by bar associations, law schools, and community organizations. Currently, the commission's 12 members are appointed by the governor, the chief judge, and state legislative leaders.

Though the current debate may fade once Kaye's successor is chosen, the gender issue could quickly reemerge. If Paterson picks either of the sitting Court of Appeals judges to make the finalists' list--Eugene Piggott and Theodore Jones, a leading contender--for the top job, another vacancy immediately opens up.

Might more women apply--and potentially make it through the commission's screening process--the next time around?

“I am sure people would be interested if more seats open up," adds Lesk. "But for now everyone is just focused on the chief justice position."

Make a comment

Comments (0)
Save & Share: Facebook | Del.ic.ious | | Email |

Reprints & Permissions

Post a comment

If you have a TypeKey or TypePad account, please Sign In

You are currently signed in as (nobody). Sign Out

Name:

Email Address:(Not displayed with comment.)

URL:

Remember personal info?

Comments: