By Henry J. Stern
September 5, 2006
Wednesday's unanimous decision by the United States Court of Appeals for
the Second Circuit is a blow to the power of political bosses. The case,
about how Supreme Court justices are selected, is important. But it also
creates a serious problem for the state legislature, which has the opportunity
to come up with a new way to select judicial nominees that will pass Constitutional
scrutiny.
New York State has a completely mixed bag with regard to selection of judges.
The highest court in the state, the Court of Appeals, consists of seven judges.
Each is appointed by the governor when a term expires, or when a judge resigns
or turns 70. The governor must choose from a list of seven lawyers selected
by a screening panel. The governor's selection of a judge goes to the state
senate for confirmation.
The appointive system was approved by the voters in 1977, replacing the direct
election of Court of Appeals judges, who ran on the ballot lines of political
parties. The change was triggered when a wealthy negligence lawyer spent
millions of dollars (a large sum at the time) on his own campaigns. He lost
his first race but was elected the second time he ran. The intention of the
change was to take the judiciary out of partisan politics, and it generally
succeeded.
In New York State, the Supreme Court is not supreme. It is the highest of
trial courts, but its judges decision are subject to two levels of appellate
review. Primary elections are used to select party nominees to the civil
court, while judges of the criminal court and the family court are appointed
by the mayor of the City of New York, who uses a judicial screening panel
to recommend candidates.
Supreme Court justices, however, have been selected by an odd mechanism called
a judicial convention. This institution began in 1846, was superseded by
primary elections in 1911, was restored in 1921, and has been the mechanism
of choice ever since. The conventions are assemblies of faithful followers
of political leaders. Although theoretically elected by the public, they
are elected en masse and hardly anyone knows who they are. If there is no
primary contest, which is usually the case, no election is needed. These
insiders get together at a meeting, usually in a hotel room, where they ratify
the choices previously made by party leaders.
This system was ruled unconstitutional in January 2006 by Federal Judge John
Gleason, and on August 29, his ruling was upheld by a three-judge panel of
the Second Circuit. The decision will stand unless reversed by the United
States Supreme Court, which is considered unlikely.
The New York State legislature must now find a constitutional way to select
judges, replacing the judicial convention. An obvious alternative is direct
primary elections, but this method too has problems. First is the issue of
massive spending by candidates.
Since candidates for the bench are usually relatively unknown to the public
before they run, the money they spend will bear heavily on their chances
of election. Second is the fact that most voters have no idea who the candidates
are or what they have done, and many votes are cast on the basis of ethnicity
and gender, since all the voters know are the names which are printed on
the ballot. Judicial primaries thus face the twin challenges of excessive
influence and public ignorance.
One possible way to pick judges would be for an impartial screening panel
to prepare a list of well qualified candidates (not limited by number) and
for the new judges to be chosen either by direct election, proportional representation
or a lottery. This would reinforce the concept that justice is blind. It
also recalls the words of William F. Buckley, Jr., candidate for mayor of
New York City in 1965 (he received 341,226 votes), who wrote that he would
rather be governed by the first two hundred names in the Boston phone book
than by the faculty of Harvard University. Although Buckley was a member
of the class of 1950 at Yale, his remark would apply equally to the New Haven
phone book vis a vis his alma mater.
The architect of the judicial effort is Jeremy Creelan, an alumnus of the
Brennan Institute for Justice. He said: "Under the current system, judges
are beholden to party leaders and many well-qualified lawyers are never even
considered for judgeships because they have no ties to party leaders. Allowing
all well-qualified candidates to compete for their party's nomination will
help restore confidence in our courts."
To the surprise of many politicians, a rotten system has been knocked out
by a wholesome judicial intervention. Building a better system of judicial
selection will be more difficult to accomplish, particularly if the task
devolves on our self-serving boss-ridden legislature. But attention must
be paid; progress has been made.