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A personal view of judicial elections

I’ve mentioned in this space before that my father Charles A. Kuffner, Jr. was a Supreme Court justice in New York. (Note: The Supreme Court in New York is basically the equivalent of a District Court in Texas. The top court in New York is the Appellate Court.) He was elected to that position in 1982, and lost his re-election bid in 1996. (Yes, they have 14 year terms in New York.) As you might imagine, he has followed my series of posts about judicial elections with interest, and while discussing it in a recent phone conversation, I encouraged him to write about his experience for publication here. Here’s what he sent me:

Is there a best way to select a Judge?

I have had this discussion with my son and many others over the years. Since I have been exposed to both the election of Judges and the selection process for the Judiciary I offer this commentary.

Both systems have their obvious flaws but over all I prefer the election of Judges with some limitations. Let me tell you my experience.

In 1982 the State of New York funded additional Judgeships Statewide with 13 new positions for the 2nd Judicial Department, Brooklyn and Staten Island. The political leaders worked out a formula, 10 Democrats, 3 Republicans, 2 Republicans from Brooklyn and 1 for Staten Island. (Staten Island was included since the Senate Finance Chair was from Staten Island).

A joint committee selected by the politicians interviewed all candidates and if approved the person would run in November dually endorsed by the Brooklyn Democratic Party and the Republicans. You should know that without the Democratic endorsement a person had no chance for election.

12 Republicans interviewed from Staten Island, but for one reason or another consensus could not be reached. I was candidate #13 and interviewed just before the judicial convention. Previously, I was on that screening committee and was not a candidate for the position. I was passed by the joint committee and was elected in 1982, and served from 1983 until 1996.

In 1996 I sought the Democratic dual endorsement, which previously was automatic, but denied that endorsement. I ran as a Republican and was defeated. A little history; I was endorsed by every Bar Association in the district as “Highly” qualified and even a “Highly” qualified rating was obtained by the umbrella group representing the “white shoe” lawyers. Interestingly, I was the only trial court Justice to received the “highly” qualified rating. Even with these credits, along with being President-elect of the Association of Supreme Court Justices, it meant nothing to the straight line Democratic voters in the 2nd judicial district. Add to that was my reversal rate after trial which was about nil.

I then applied to the State and the City for an appointed judicial position. I interviewed at the State level and even though I had an affirmance rate after trial of about 98% I was not recommended to Gov. Pataki. More history; I opposed the Pataki plan to limit judicial discretion in sentencing defendants and was so quoted in the New York Times.

The appointment process for the NYC Criminal Courts mirror that of judicial selection set up I originally went before when I was elected in 1982. I came out of the Mayor’s committee as recommended and was even interviewed by Mayor Giuliani but all for naught. I was not appointed: thus ended my judicial career.

Reality check: there isn’t a major party leader that will give up the power over judicial candidate selection whether by election or appointment. Jobs are the life blood of political parties and judicial patronage appointments mean untold millions of dollars that find their way back to the party in power. From my own experience I can tell you that every mortgage foreclosed meant at least $500 to the lawyers I appointed as referee to sell; for every commercial property that goes into foreclosure, a receiver is appointed to collect rents, etc. That fee is usually 5% of monies collected. For every person in need of guardianship, a lawyer is appointed as an evaluator and is paid a percentage of the estate to be managed; in the Probate courts the amount of patronage paid to politically connected lawyers is staggering. Need I say more?

If I had to recommend a system for appointment of judicial candidates, I would have as a committee membership roster, Court employees who work in the Courts where the vacancy exists; lawyers who routinely practice in that court; former jurors who sat for trials and a psychiatrist/psychologist. Why these folks? Easy, court employees are keen observers and evaluators of courtroom demeanor; lawyers want to practice before a colleague whose work habits and scholarship are known; jurors because they also have 1st hand knowledge of the stresses and strains in a courtroom during trial and lastly mental health professionals who can gauge the all important qualifications of demeanor, temperament and character of the candidate.

Once the candidate or candidates are selected they are appointed and sit for 2 years and then run for a longer term in a non-partisan election on their record.

Pie in the sky? You bet, but if you want to eliminate party politics from the Judiciary radical changes have to me implemented.

So there you have it. The system is a little different in New York, but the parallels are obvious enough. Again, my point is not to defend the status quo but to point out that the question of how best to do this is complex, and we are not well served by simplistic solutions such as eliminating straight-ticket voting for judicial races. More discussion is needed, and I hope I’ve provided some useful items towards that end.

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One Comment

  1. Kenneth Fair says:

    Your father’s suggestion actually sounds like a good one to me.

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