The Origin of Judges
By Henry J. Stern
July 29, 2002

   We have for some time been concerned with the selection of judges and the practice of judicial patronage.  This week, the Daily News and The New York Times weighed in with editorials on the issue.  On Monday, under the headline, "King Manton feasts on Queens dead," which invokes the specter (or re) of post-mortem cannibalism, the News focused on the counsel to the public administrator, part of the Surrogate's Court in Queens.  Since former Congressman Tom Manton, Queens County Democratic Leader for the past 17 years, selects the Surrogate, his law firm rakes in about a million dollars a year in patronage assignments.

    President Bush is trying to end the estate tax nationally, but if you die in Queens without a will or survivors, there is, in effect, a 6% tax to help feed political insiders.  If you are still alive in Queens, make out a will, unless it is your intention for the Sweeney law firm to be one of your beneficiaries.

    I served three years on the City Council with Tom Manton and I found him to be a likeable, decent person, more amicable than many reformers.   He has also made some sound political decisions (e.g. Helen Marshall for Borough President).   The problem lies with concentration of power, manipulation of the election law to avoid primaries, and use of enormous political influence for substantial personal profit in professional fees.

    The career of a number of political leaders today suggest the life of Tammany sachem George Washington Plunkitt, who told newspaperman William J. Riordan in 1905, almost a century ago, "I seen my opportunities and I took 'em."  This ancient principle also applies to politicians' afterlives as lobbyists to their former colleagues.

    Monday's Times editorial deals with the travesty of democracy in which local judges are anointed, nominated, elected and enrobed. Under the title, "New York's Fake Conventions", the Times describes the process in tawdry detail, telling war stories about the making of judges.  The controlled judicial convention is the practice in four New York City boroughs.  Brooklyn, which holds Staten Island captive, is noted for corruption and nepotism.  Queens and the Bronx are more discreet, but their conventions are similarly controlled by county bosses.

    Manhattan, as usual in city government, is the odd county out.  There is more power-sharing with district and factional leaders than in the more docile boroughs.  Each year there is a judicial screening committee, although it is scarcely representative of the bar or the public. There are litmus tests for prospective Manhattan judges, but the standards are less about money, and more about identity and ideology.

    There are three aspects to political identity: 1) gender, 2) ethnicity, and 3) sexual orientation.  Organizations representing identity groups have disproportionate representation on screening and selection committees.  Many promote their own choices, and the new judges may well be the people whose rabbis (non-sectarian) make the best strategic alliances to round up the county leader and a majority of district leaders.  The judges who emerge are usually honest but radical.  They represent the search for the end of the rainbow as contrasted with their colleagues from other boroughs, who can be symbolized by the pot of gold.

    Our goal is a judiciary which is honest, competent, unbiased, unobligated and representative of excellence among all members of the bar.  At this time, none of the five counties comes close to meeting that standard of merit.  The newspapers know it and have said so vigorously: is it not time for elected officials to declare themselves on the issue of judicial selection?

    Don't hold your breath.

Henry J. Stern is the director of NYCivic.