By Henry J. Stern
February 3, 2006

The most important political event in New York in 2006 was a decision handed down last Friday by Federal Judge John Gleeson of the Eastern District of New York, which ruled unconstitutional the judicial conventions through which party bosses have chosen State Supreme Court Justices for a century.

In a thoroughly documented decision, which you can link to here, Judge Gleeson ruled that the convention system, in which judges are hand-picked by delegates chosen for that purpose, usually officers of local political clubs, deprives the public of its legal right to participate in the selection of judges.  Under current rules, all judges in New York State EXCEPT Supreme Court Justices are either appointed by elected officials or chosen in open primary elections. 

The convention system for Supremes has resulted in the evils of judges buying their judicial offices from county bosses.  The grateful beneficiaries of these nominations are sometimes expected to assume obligations to the men who put them there, which may influence their decisions in cases directly involving the leader or his clients, or in cases where litigants have appealed to the county leader to intervene, in the style of The Godfather, who assisted his people in the settlement of disputes.  Judges have also tried to recover the money they paid for their robes by extorting sums from litigants that appear before them, in the manner of 19th-century police captains in the Tenderloin and similar districts.  This was the case of Judge Victor Barron.  

The reality of the current judicial nominating process is that the delegates 'elected' by the voters, sometimes a dozen or so for each assembly district (plus another dozen alternates), are in fact persons unknown to the great majority of voters, who ritually approve the nominees of the county political organization.  If the election is not publicly contested, the names of the nominees do not even appear on the ballot.  The judicial candidates of the Democratic Party, in boroughs where that nomination is tantamount to election, are in fact chosen by party bosses, sometimes in exchange for substantial sums of money, theoretically intended for campaign expenses, but often finding their way into the political leader's pockets, or to favored business firms for minimal and totally unnecessary goods and services.  The businesses (pollsters, printers and publicists) launder the boodle before paying off those in power who had sent the judicial candidates to them to be fleeced.

FOR STUDENTS OF GOVERNMENT, THE HISTORY OF INDIRECT ELECTIONS IN THE UNITED STATES

Historically, the practice of indirect election was not confined to Supreme Court Justices.  BTW, in New York State the "Supreme Court" is in fact a trial court.  There are two levels of the judiciary above it, the Appellate Division, where the judges are selected by the governor from among supreme court judges, and the Court of Appeals, which is the pinnacle of the state judiciary.  The Court of Appeals was for many years, directly elected by the people, but abuses in campaign funding and a high degree of partisanship caused the method to be changed about twenty years ago.  Now the judges are appointed by the governor from a list presented to him by judicial screening panels, which solicit nominations and then screen candidates.  This process has to some extent minimized the role of politics and money in judicial selection.

The President of the United States himself is elected indirectly, with the Electoral College making the final decision.  Over time, the electors have lost their discretion, and now simply mirror the votes of their states (except for the rare 'faithless elector').  Nonetheless, a President can be elected who has received fewer popular votes than his rival:  Hayes v. Tilden in 1876, said to be the stolen election, Benjamin Harrison over Cleveland in 1888, and Bush over Gore in 2000.

United States Senators were elected by State Legislators until April 8, 1913, when the Seventeenth Amendment to the Constitution was ratified by the 36th state, Connecticut, Louisiana took until June 11, 1914 to become the superfluous 37th state (out of 48).  Left-leaning Massachusetts was the first to ratify (on May 22, 1912, just nine days after it was proposed by Congress).  New York State was fourth, acting on January 15, 1913.   Senators have now been popularly elected for 92 years, still less than half the time since the founding of the Republic


THE BACKGROUND:   HOW THIS CASE CAME TO BE BROUGHT

Ironically, it was the actions of ex-Assemblyman and Brooklyn Democratic leader Clarence Norman, until his felony conviction in fall 2005, and Assemblyman Vito Lopez, his successor, that began the chain of circumstances that led to this decision.  When Margarita Lopez-Torres was elected to a county-wide Civil Court in Brooklyn in 1993 on the recommendation of Vito Lopez, she rejected every job applicant sent to her by the county organization, including Mr. Lopez' daughter who sought employment as a law secretary.  The payback for this defiance was the county's refusal to designate her for re-election when her term expired in 2003.  She ran anyway, winning re-nomination in a sharply contested Democratic primary.  The next year, she sought the county designation for Supreme Court Justice, which was decided by a judicial convention, not a primary.  Predictably, the county organization turned her down although she was among the longest serving judges on the civil court.  

In the spring of 2005 the position of Surrogate suddenly became vacant when Justice Michael Feinberg was removed for corruption by the Court of Appeals, upholding the recommendation of the Commission on Judicial Conduct.  You can find details of l'affaire Feinberg on our website; just google his name.  The vacancy thus created came in time to be filled by a primary.  Three candidates competed, and Judge Torres won by an extremely narrow margin, some 200 votes.

At this time, the powers that be in Brooklyn, fearing the loss of the lucrative judgeship, which has the power to appoint receivers and grant other judicial patronage, communed with Governor Pataki and they agreed to create a second position of Surrogate Judge in Kings County, plus a Supreme Court seat in Queens for its strong leader, Tom Manton.  In exchange for this courtesy, a number of upstate judgeships were created for Republicans and some Court of Claims positions for Governor Pataki to appoint.   The timing of the legislation was exquisite, the new judgeship came into existence too late to file for the primary, but in time for the general election, so the new Kings County surrogate would be chosen by Democratic party bosses, without the need for a primary election.

Assemblyman Frank Seddio was chosen as the new surrogate, after Assemblyman Joseph Lentol declined the county leader's offer of the nomination.  Note that both candidates were members of the State Assembly, where the support of Speaker Sheldon Silver had been essential to creating the new positions.  There was something for everyone, except the voters.

This matter is by no means settled.  An appeal to the United States Court of Appeals for the Second Circuit is inevitable, and beyond that the losing party may seek review in the Supreme Court of the United States, a far cry from the Supreme Court of the State of New York, the trial court which is the subject of the controversy.

THE DECISION GIVES HOPE FOR FURTHER JUDICIAL REFORM,
MONEY-DOMINATED PRIMARIES AREN'T THAT GOOD EITHER,
PARTICULARLY WHEN SITTING JUSTICES SEEK RE-ELECTION.

Judge Gleeson's decision is in the finest tradition of responsible judicial activism.  He found an undemocratic situation in which the people were left powerless to elect judges.  The concentration of power in one man or a tiny group spawned other evils.  Just as it is dictatorships that start wars rather than democracies, it is political dictators who plunder and twist the mechanisms of justice to serve their own ends.  And for every crime in the courts that is exposed and punished, think of how many wrongs are done of which we are unaware.  Bribery is a crime of consent and collusion, and it is rare for a victim of extortion to make a complaint.

The underlying principle here is that if a system is too unfair and unbalanced, giving power to one at the expense of everyone else, the courts will intervene.  There is wide latitude allowed in methods of election and districting.  Even the DeLay design for Texas, adding seven Republican seats and breaking up Democratic districts, passed judicial muster.  But Judge Anthony Kennedy did warn, on that occasion, that it was possible for some district lines to be so odious and unfair that they would not meet the test of constitutionality.  Where the line will be drawn depends on who draws it.

The State Legislature now has the opportunity to reform the system to comply with Constitutional requirements of access and fairness.  Our prediction is that they will be unable to do so, they can't even agree on buying voting machines.  The matter will inevitably return to the courts.  There is a particular problem here with judges seeking re-election.  If we want them out of politics, we cannot require them to raise substantial sums for advertising in order to remain on the bench.

If there is an appeal to the Supreme Court, we hope that the two new Justices, John G. Roberts and Samuel A. Alito, will have genuinely open minds when they consider these matters.  This is not an economic issue, nor an abortion or gay rights case.  The issue here is what level of unfairness must be reached to raise a Constitutional issue.  We believe that deprivation of the right to vote is eminently unfair.  The public has a fundamental right to elect judges, or to delegate that right to an elected official whom they have elected.

Beset by murdered children and transit strikes, it is comforting to reflect that something has happened which, if followed up, will lead to a more honest judiciary, which is required if justice is to be done for all people, rich or poor, wired to the political machines, or independent of them.

One cannot write about this case without thanking the Brennan Center for Justice, which brought the lawsuit.  While we do not necessarily agree with every case they bring (even fighters for justice may have issues of judgment), this case was in the best tradition of the quest for honesty, decency and fairness.  We know Justice Brennan would be proud.

#281 2.3.06 1731wds

New York Law Journal:
State Scheme to Select Judges Found to Violate Voter Rights

NewYork Sun:
Politicians Sent Scrambling As Court Rules on N.Y. Judges

New York Post:
Party's Over For Rigged Judge Elex

New York Times:
She Felled a Goliath in Brooklyn
Rebuking Party Leaders, Court Halts System of Picking Judges
Primaries Would Reduce Role of Bosses, Not of Money

New York Daily News:
Pols Get Benched: Party judge picks unconstitutional
Party's Over For Boss-Run Courts

New York Newsday:
Federal judge strikes down state system for selecting judges

El Diario:
A Latina judge leads the way

Times-Herald Record:
State ordered to change way judges chosen

Times-Union:
Ruling opens judicial races Federal judge orders primary votes on state Supreme Court jurists

North Country Gazette:
Court: NY'S Judicial Selection System Unconstitutional

Forbes:
N.Y. System for Judge Selection Rejected