By Aug 17, 2023|
Brooklyn’s Democratic Party tapped a candidate for a New York judgeship who previously wrote about her opposition to Roe. v. Wade. Now, she could be asked to rule on cases involving abortion rights and access for the borough’s 2.5 million residents.
Rachel Freier is an acting justice on the state Supreme Court — which is New York’s top trial division; the Court of Appeals is what other states call supreme court — described her “disagreement with the Supreme Court’s reasoning” on Roe v. Wade in a 2013 op-ed in the Forward entitled “A Mother Is Who I Am.” She wrote it in response to another woman’s piece about the pain she felt in being understood as a “holy, pure vessel” for babies as a member of the Haredi, or ultra-Orthodox, Jewish community.
An Orthodox mother of six who founded a women-led emergency services provider in Borough Park, Freier wrote that “women universally share an innate maternal instinct,” though she didn’t delve into her legal rationale for disagreeing with the Roe decision.
While at least some Democratic Party leaders became aware of Freier’s op-ed as it circulated in the hours ahead of the official judicial convention and vote of delegates at the Marine Park Golf Course on Aug. 10, her nomination proceeded as planned in the public vote there. It came three days after a private-room meeting among the Democrats at Nick’s Lobster House in the same neighborhood.
Freier is all but assured a 14-year term, since there are six open Supreme Court seats on the ballot in November with the party’s six picks among the seven names on the ballot.
“The party accidentally put a possibly anti-Roe judge on the Supreme Court,” an unhappy party insider told THE CITY. “There were district leaders who knew at the convention and all anyone could do was shrug,” the person added, noting that some of those leaders had only learned about the op-ed after the closed-door meeting at the restaurant.
Freier did not reply to a request to clarify her position on abortion and how it might impact her work on the bench.
Marcos Masri, her campaign manager, said, “as a judge, she can’t ethically comment and share her opinion on any issues at this point, but she said that op-ed from a decade ago was about the beauty of motherhood, and it was the disagreement on the reasoning not about the decision.”
Masri added, “her judicial decision-making is to follow the law fairly with equity for all people regardless of race, religion, ethnicity or gender.”
Asked about Justice Freier’s op-ed, James Christopher, a spokesperson for the Brooklyn Democratic Party, said the party respects a woman’s right to choose and “will always defend a woman’s ability to voice her experiences without fear of them being weaponized.
“The op-ed was written a decade ago by Judge Freier, and it does not attack or condemn Roe v. Wade in any shape or form. Hon. Freier shared her perspective on motherhood and the trauma of a miscarriage while questioning a professor’s reasoning,” he said.
Former party boss Frank Seddio put it differently.
“I would not even give it a second thought what her position is on abortion because it has nothing to do [with it],” he said, referring to the cases that would come before her on the Supreme Court bench. “I would care about how they feel about issues related to criminals or people who have been arrested.”
‘The Joy of Motherhood’
Freier was elected as a Civil Court judge in 2016. In February, the state court system elevated her to acting Supreme Court judge, and she became one of the first Haredi women in the state to hold that role. (Though news reports have described Freier as the first Haredi woman to serve in that role, sitting Supreme Court Judge Esther Morgenstern, also a Haredi Jew from Borough Park, was elected as a state Supreme Court judge in 2006.)
After her nomination last week, Rodneyse Bichotte Hermelyn, head of the Brooklyn Democrats, called her “a star and powerhouse.”
But on at least one foundational issue, Freier has expressed views out of line with the party’s platform.
In her 2013 op-ed, when she was a practicing attorney, Freier recalled speaking up in a constitutional law class at Brooklyn Law School after a teacher said the prevailing justices’ rationale in their 1973 Roe v. Wade ruling, then a matter of settled law, was that “since the woman is onerously burdened with carrying the fetus, it should be her choice to have an abortion.”
Freier, who would not become a judge until three years later, went on to add that she disagreed with that explanation.
“I squirmed in my seat and debated if I should share my disagreement with the Supreme Court’s reasoning,” she wrote. “Slowly my hand went up. Timidly at first, and then with a bit more resolve, I explained that having children is a blessing and each day that I gave birth was the most memorable day of my life. The joy of motherhood cannot be properly described in a law school casebook.”
She went on to describe a pregnant woman in the class agreeing with her.
“It seems that women universally share an innate maternal instinct and a desire for children,” she concluded. “[H]aving children was always important to me and I chose to remain steadfast to Haredi ideology while pursuing a law degree and then maintaining a law practice without compromising my role as a yidishe momme to my children.”
While most civil and criminal cases to cross Frier’s bench during the course of her 14-year term would likely not relate to abortion, the issue potentially could arise when New York courts consider legal matters related to crisis pregnancy centers, whether employers decline abortion coverage for employees and challenges to New York laws meant to protect abortion-seekers from other states.
Pressure on Voters
Freier’s nomination emerged after an hourslong session in a back room of Nick’s Lobster House on Aug. 7, where district leaders lobbied for their preferred slate of candidates among 16 finalists, while a reporter from THE CITY observed the scene through glass windows and half-drawn blinds.
Months and even years of pressure, donations, and glad-handing preceded Brooklyn’s Democratic judicial convention, a notoriously opaque affair abhorred by good government groups. This year was no exception, though it lacked the fireworks of last year when the night nearly ended in a brawl spurred on by Seddio, the former party leader.
Several insiders described another intense pressure campaign this year, with threats to punish delegates who wouldn’t support certain candidates.
“We’ve received bullying, intimidation, negative campaigning,” Assemblymember Nikki Lucas (D-Brooklyn), who is also a district leader, said in a recording obtained by THE CITY of the Aug. 7 dinner.
Lucas went on to rail against a process she said discriminated against Black and Latino candidates.
“Over and over again, we have witnessed white judges move up,” she said in the recording. “We don’t see that luxury happening with Black judges.”
“Black and brown people are in these courts at all levels and we can’t be represented properly,” Lucas told her fellow Democrats. She declined THE CITY’s request for additional comment on her remarks made behind closed doors.
Three days later, the party officially culled a group of 16 candidates, seven of whom are white, down to six nominees, four of whom are white.
‘War Against the Machine’
Masri, a longtime Democratic party operative who ran Freier’s campaign, said Freier’s opposition — including former party boss Seddio and City Councilmember Kalman Yeger, who are both district leaders — attempted to block her nomination as they pulled for a rival candidate. Seddio denied trying to block Justice Freier’s nomination and said he didn’t vote for her only because she’d secured the nomination without his support.
“A lot of pulling strings, back and forth. We were going against a big war, against the machine,” Masri said. “There was a lot of bully tactics against her.”
Yeger denied that he’d been trying to block Freier’s nomination, saying she did not reach out to ask for his support until July 11, a month ahead of the convention, and long after he started picking his slate.
“I didn’t ask a single leader not to vote for her,” he said. “All I asked is for the leaders to support my candidates.”
Freier prevailed, though, with the backing of Bichotte Hermelyn.
Freier won the party chief’s support, said Masri, after winning the nod of Rabbi Aryeh Ralbag in Midwood.
“He’s Rodneyse’s rabbi,” Masri said. “He was the ice breaker.”
Masri said he had not read Freier’s 2013 op-ed, but that he speaks with her regularly about her views.
“When I had a conversation about issues like LGBT or like all those things that are against the religious beliefs, but she’s always been saying, she’s gonna apply according to the law,” he said.
He declined to specify what Freier believes about “issues like LGBT.”
“The Orthodox community has one belief,” Masri said. “But once you’re in court, you have to act according to the law, not with you on your belief.”
Pointing Fingers at Each Other
Word about Justice Freier’s op-ed only began to circulate after the closed-door meeting of district leaders on Aug. 7 but before the formal judicial convention on Aug. 10.
Less than an hour ahead of the final vote, District Leader Lori Knipel, whose husband is an administrative judge in Brooklyn Supreme Court, sent out an email to delegates.
“I urge you all to vote for the slate of candidates that we endorsed. Especially Judge Rachel Frier,” read the email shared with THE CITY. “The Orthodox men of Boro Park do not want her to succeed. Please realize that if they oppose her it is truly the Misogynistic attitude of her Community [led] by Councilman Kalman Yager.”
Knipel didn’t return a request for comment on her email. Asked about the characterization, Yeger called it “the sort of antisemitic trope that is frequently promulgated against my community by secular Jews.”
Carey Tan, 38, a judicial delegate in Prospect Heights, had no idea what Knipel’s email was referring to until another delegate showed her the Forward op-ed.
Then, Tan said, she was “dismayed but not surprised.”
She shot back an email to Knipel saying, “Thanks, but I prefer judicial candidates who unequivocally support my right to have an abortion.”
“Have you interviewed the candidates,” Knipel shot back. “There are 2 Orthodox candidates in this group. Did you ask Saul Stein his opinion??” implying a second Orthodox judge nominated by Brooklyn Democrats also opposed Roe v. Wade. “This is totally Misogynistic!!!”
Stein didn’t return a request for comment on his views.
Tan said she didn’t doubt Freier faced misogyny during the course of her campaign, “but that doesn’t negate the fact that she went on the record to express her disagreement with the Roe v. Wade decision, and that absolutely should have disqualified her.”
Tan added that she wouldn’t be surprised if other judicial candidates had their own undisclosed problems, given Brooklyn’s shadowy nomination process.
“None of this is about what voters actually want,” Tan said. “It is about corruption. It’s about who paid into the county committee’s housekeeping fund, who has brought friends in to line the pockets of these people, who’s going to give valuable jobs to so and so’s idiot brother who can’t get another job.
“It really is this kind of cheapening of our whole system of governance,” Tan said.
Tan voted against the slate of judges in protest of what she says is a rigged system, though their nominations nonetheless sailed through.
For his part, Seddio said the county’s process was a legitimate one, pointing to a panel that screens candidates before district leaders begin selecting them, and a group of 44 district leaders who vote on the party’s selections.
“Let me think of the most legalistic word I could think about those criticisms: bullshit,” he said. “Go to Queens see how they do it, they got three guys in a room who make all the choices. Go to the Bronx, take the Bronx, how they do it. Take Staten Island.”
“Brooklyn is the most fair way of ever doing this that we can have,” he said.