On nominating judges

My buddy Matt sent me this NYT editorial about a legal challenge to the way in which New York State elects its judges.

The United States Supreme Court hears arguments tomorrow in a challenge to New York's undemocratic method of electing its Supreme Court judges. A federal appeals court ruled that the process, a relic of the era of clubhouse politics, infringes on the constitutional rights of voters and candidates. The Supreme Court should affirm that well-reasoned decision.

New York's Supreme Court judges -- who are trial-level judges, not members of the state's highest court, the Court of Appeals -- are nominated through an archaic system of judicial conventions. These conventions are dominated by delegates handpicked by party bosses, who vote however the bosses tell them.

Independent candidates for judge have virtually no chance of bucking the system. To win the nomination, a candidate who is not backed by the bosses may need to recruit more than 100 delegate candidates to run in different districts. Those candidates would have to collect thousands of petition signatures to qualify for the ballot. If they did qualify, they would need to do an enormous education campaign, because their names appear on the ballot with no identification, so there is no way for ordinary voters to make an informed choice among them.

The judicial conventions themselves are an empty exercise. More than 96 percent of the nominations are uncontested. Absentee rates range as high as 69 percent. They often take, from beginning to end, as little as 20 minutes. When Margarita López Torres, the Brooklyn-based judge who is challenging the system, asked to attend a convention so she could make her case to the delegates, she was told that candidates were not allowed.

In other words, the whole process is a sham. It has the trappings of democracy, but it is not democratic at all. Candidates who want to be elected to a New York State Supreme Court judgeship have no way, short of being given the nod by the bosses, to compete for the voters' favor. The voters have no real hope of having their votes make a difference in the election.

In the emai, Matt said this reminded him of my dad, who was a New York Supreme Court justice for 14 years. So, I sent the link along to Dad to ask him what he thought about it. Here's his response:

I read that editorial and said to myself, "What's new"? The issue in my opinion that seems to escape every writer's gaze is, Who makes the appointment and by what means does that appointment get made? From my own experience with the so-called "merit" selection process, it is more cynical than the purported "unconstitutional" judicial convention system. For example, after being denied the cross-endorsement for a 2nd term on the Supreme Court, a very rare political event, I went through the arduous task of applying to the Governor's Committee and the Mayor's Committee. This was after being voted "Highly Qualified" by the Association of the Bar of the City of New York; the only sitting trial judge to get that rating. I never made it out of the Governor's committee notwithstanding having had an affirmance rate of at least 98% on the criminal cases tried to verdict. Nor did I even get appointed by the Mayor even though his own committee voted to appoint me to the Criminal Court.

What happened? Politics at the so called merit system. Notwithstanding my qualifications after 14 years, my politics conflicted with the Governor when it came to Judicial Independence and obviously the Mayor fell into step with whom ever had the Governor's ear. Merit had nothing to do with this appointment process, politics ruled and politics in the rarefied atmosphere of one on one whispers in the ear of the appointer.

I have no illusions about the way New York State selects its Supreme Court judges. It is power politics, but at least it is a voting process no matter how watered down. I have known of floor fights within the convention to offset the rubber stamp of the political leader, but concededly they are rare.

Let's be honest, the merit system, so called, isn't the solution for the problem because it is politics of power in another shape. Without the system in New York, I would never have been a Judge. But because of the system in place at that time, a deal had been worked out between the political leaders that those who passed the selection committee would be nominated at the Judicial convention. I will be always grateful for that "unconstitutional" system.

He then sent a coda that reads "The only diffenence between the so called 'Merit system' and the unconstitutional system is that in the latter it comes from the local political leader in his neighborhood club house, whereas in the former it comes from a posh conference room on the 45th floor." So there you have it.

Posted by Charles Kuffner on October 05, 2007 to Legal matters