January 22, 2008
GET POLS OUT OF POWER IN PICKING JUDGES
BY JOSHUA SPIVAK
The hope of any New York voter expecting a fair and open system for selecting judges received a major blow last week.
The U.S. Supreme Court reversed a lower-court ruling and found that the state’s method of choosing judges is perfectly constitutional. Coming on the heels of some high-profile judicial bribery scandals, as well as the marked failure of the state government to enact needed reforms to the process, this ruling is yet another setback for anyone who would prefer that judges not be beholden to political party officials.
The case stems from New York’s “unique” method of nominating judges to run for election to the State Supreme Court — a trial-level court. State law does not provide for an open, democratic primary, but rather allows a nominating convention tightly controlled by Democratic and Republican party leaders.
The candidates chosen are almost guaranteed election in November. They are also well aware that the party boss selects them for their new jobs, and they must in the end remain in the good graces of political leaders if they hold out any hope of re-election.
For average citizens unfortunate enough to find themselves in court, a Supreme Court justice is likely the only judge who will ever hear the facts of their case. So it is particularly important that these elected judges are not viewed as “owing” their continued livelihood to any one person or group. The state judicial nominating system gives local political leaders just this type of overwhelming power over justices.
Last year, both federal District and Appellate courts found the nominating conventions to be deficient, with the District Court judge ruling that the conventions were “an opaque, undemocratic selection procedure that violates the rights of the voters” — and as such were unconstitutional.
But the U.S. Supreme Court unanimously shot down the lower court’s ruling, holding that the conventions are legal. Justice John Paul Stevens at least noted a famous and particularly apt saying of Thurgood Marshall’s in his concurring opinion: “The Constitution does not prohibit legislatures from enacting stupid laws.”
This law is more than stupid — it has encouraged and facilitated the sale of the third branch of government. In one of the most noteworthy cases, the head of Brooklyn’s Democratic Party, former Assemb. Clarence Norman, was reported to have required judicial candidates to pony up more than $50,000 in order to receive the party’s blessing — money that was then given to Norman’s choice of campaign consultants. Norman was eventually convicted of other campaign finance violations.
With the Supreme Court’s ruling, it’s now up to the shaky hands of the State Legislature to repair the problem. But it hasn’t shown any real interest in fixing the system. In fact, the last time the legislature jumped into action in a judicial election matter, its behavior seemed specifically designed to disenfranchise voters: In 2003, when the Brooklyn Democratic Party machine looked as if it would lose its tight control over the county’s lucrative Surrogate Court judge position, the Legislature made sure to add a second Surrogate Court seat in Brooklyn. But legislators wrote the law in such a way as to give the Democratic Party leaders the ability to hand-select the judge.
Unfortunately, there’s no obvious solution to the judicial election quandary. Straight-out competitive judicial elections are usually ignored by the electorate, who justifiably don’t know the candidates all that well. Worse yet, in other states, judicial elections have begun to be transformed into full-out, issue-oriented partisan battles.
Another option is having the governor select, and the Legislature approve, candidates. This has worked out well for the state Court of Appeals, but it, too, has its downsides, as criticism of former Gov. George Pataki’s appointments has shown. It also will almost certainly result in a number of cronies slipping through the cracks.
But even with these serious downsides both of those options are far preferable to the status quo.
The Supreme Court ruling is a significant setback to the goal of ending the embarrassing and detrimental throttlehold local politicos hold over judicial selection. But it’s not the end of the battle. Elected officials need to start enacting serious reforms to the nomination process.
If not, New York citizens will continue to be burdened by a particularly dangerous “stupid” law.
Joshua Spivak, a lawyer and public relations executive, is a research fellow at the Hugh L. Carey Center for Government Reform at Wagner College.