Opinion: New York’s complex court bureaucracy shields judges from accountability

Judges are less accountable to the public than to court administrators who arbitrarily shuffle them around to different courts and issue secret memos to guide their interpretation of the law.

Former Chief Judge Janet DiFiore delivers her State of the Judiciary address inside the Court of Appeals Hall in 2018.

Former Chief Judge Janet DiFiore delivers her State of the Judiciary address inside the Court of Appeals Hall in 2018. John Carl D'Annibale /Albany Times Union via Getty Images

Earlier this week, advocates unveiled a new effort around judicial selection in New York, calling for an end to automatic reappointments for New York judges. Noting that New York’s state court judges are given terms of fixed length, the advocates are calling for judges to be evaluated and scrutinized before being reappointed or reelected to new terms. This demand is correct, and this effort is valuable, but it undersells the interrelated problems around judicial selection, judicial transparency and judicial accountability.

My scholarship focuses on an under-examined part of the court system: court administration. My research reveals that the court administrative bureaucracy, which includes a complex hierarchy of judges, has enormous power to shape how laws are interpreted in courtrooms. Court administrators, who wield power to control where judges are assigned, have both directly advised judges in New York on how to interpret the law and have created administrative work-arounds around certain laws – such as with the recent bail reform – which have tacitly communicated to judges their view of how such laws should be interpreted.

Because court operations, like much of government work, happen largely in private and off the record, neither the public nor academia have been able to pay close attention to these institutional mechanisms of the court system.

Data and other information about the court system is also in short supply, and where it does exist, it tends to be limited to information about individual judges’ decisions, as opposed to systemic data that would inform the public in an accessible way about the internal incentives that affect judicial decision-making, as well as how judges are selected in the first place, or how and why they are moved around the court system.

This has led to a state of affairs where key underlying drivers of judicial practice – administration, selection, professional advancement and punishment, including in the form of undesirable reassignments – are opaque to the public and even to elected officials. 

The lack of transparency around court administration has allowed New York’s court system to metastasize into an impenetrable “courteaucracy” that’s far more confusing and multi-layered than other states’ court systems. In the context of this courteaucracy, we should be concerned about any practice that limits judicial accountability, especially de facto life tenure. Currently, judges effectively serve for as long as they want, without any meaningful or public evaluation between their terms. 

The status quo of de facto life tenure is actively supported by some people, judges first and foremost, but it’s also passively supported by the inability of anyone outside the judiciary, including elected officials with legal responsibilities in the judicial selection process, to penetrate the black box of court administration.

Judge Vincent Del Giudice’s time on the bench illustrates what happens when these dynamics come together. Del Giudice has spent 22 years as a judge, all of them served as an “Acting” Supreme Court Justice, despite the fact that he has never been elected or appointed to the Supreme Court – and despite a record that, upon inspection, shows that he is an extreme outlier on multiple concerning metrics. 

Del Giudice has spent more than two decades in the Supreme Court because of decisions by three different actors. First, a governor has nominated him three separate times – in 2002, 2005, and 2015 – to a little-used court called the Court of Claims, which exists only to hear lawsuits against the State of New York. Second, the state Senate has confirmed him each of those times. And third, the court administration reassigned him to the Supreme Court in 2002, and it has not changed his assignment since.

Over his time in the Supreme Court, Del Giudice has had 19 sentences reduced for being too excessive, more than twice as many such reductions as any other active judge in New York City or its suburbs. Even more concerning, his sentences have been reduced by a total of more than 500 years – which is more than six times more than any other active judge. (This data doesn’t even touch on other aspects of Del Giudice’s record, like the fact that he has attracted media attention for vaping on the bench.)

The ongoing lack of accountability for judges like Del Giudice, whose errors and excessive sentencing other judges repeatedly have to correct, is made possible by the lack of transparency around judicial actions, judicial administration and judicial selection. Elected officials keep appointing Del Giudice despite his record, and the Office of Court Administration is seemingly happy to keep him presiding in Supreme Court, no matter how many lives he ruins. On top of all this, his most recent term expired in 2022, but neither the court system nor the political actors responsible for appointing judges seem to care that he’s still on the bench.

We see this same lack of transparency and accountability to the public elsewhere in the court system, including in the court administration’s issuing of secret memos that reduce due process rights, in the same administration’s refusal to release updated data on drug courts, in administrative work-arounds that undermine legislation, in county political party leaders deciding judicial nominees behind closed doors, in judges only publishing a fraction of their opinions and much more.

The antidote to New York courts’ dysfunction is more transparency around court administration, around judges’ records and around the judicial selection process. Only through meaningfully throwing open the courthouse doors, by shining light not only on individual judicial actions but also on the actions that put judges in their seats and influence their decision-making, can we begin to ensure that judges are truly accountable to the people they serve. Accountability should be to the people, not to court system leadership.