February 22, 2007

PREFACE:   This is a long article basically describing how judges of the Court of Appeals are selected in New York State, and how that system came to be put in place.  It will primarily interest political and judicial junkies.  Since the history is over thirty years old, "Hardly a man is now alive, who remembers that famous day and year."   Be assured tht if you skip this column, it will not be held against you.   If you have any questions, e-mail us and we will answer them if we can.  This material is more arcane than the usual column, and we wanted to warn you about that in advance.  On the other hand, there is a lot of political history here, and some of you may be diverted by it.

Now, let us begin:

Tuesday (February 20), the Supreme Court of the United States granted a writ of certiorari in a lawsuit which will determine whether the New York State system of nominating judges by judicial conventions violates the U.S. Constitution.

In January 2006, Federal Judge John Gleeson of the Eastern District of New York found the conventions unconstitutional, and his decision was upheld unanimously in August by the Court of Appeals for the Second Circuit.  The issue is one of national significance in terms of Federal courts’ authority over State laws and election processes.  It will now be heard by the U.S. Supreme Court.
 
The outcome of the case, Lopez-Torres v. Board of Elections, could be decided by the opinion of Justice Anthony M. Kennedy, since the court may divide along ideological lines.  Then again, it may not.  My view, not on the merits, is that under the conservative justices' concept of federalism, the Second Circuit decision will be difficult to sustain
 
The selection of judges has long been a matter of public controversy.  Federal judges are appointed by the President, subject to confirmation by the Senate, and serve for life. State judges are either appointed or elected under a variety of systems, and their terms differ in length.  Some states have referenda on whether an appointed judge should continue in office.

We Go to the Court of Appeals, New York State's Highest Court
 
Not yet wading into the general topic of choosing judges, we limit ourselves today to the recent history of the New York State Court of Appeals with regard to how its seven judges were, and are now, selected.
 
In the Empire State, judges of the Court of Appeals (the state’s highest court) are appointed by the Governor from a list of seven nominees provided by a twelve member judicial screening panel, four chosen by the Governor, four by the Chief Judge, and one each by the four legislative leaders. The majority leader and minority leaders of the Senate, and the Speaker and minority leader of the Assembly.  (For the panel to submit fewer names to the Governor would be unacceptable.)  But the Governor's choice may, in fact, be limited in other ways. 

This year Governor Spitzer filled his first vacancy, caused by the retirement of Judge Albert M. Rosenblatt, who was appointed by Governor Pataki in 1998, and reached the age of 70 in 2006.   Although State Supreme Court justices are allowed three two-year extensions (until they are 76) on certification by the Appellate Division, judges on the Court of Appeals must retire by December 31 of the year in which they turn 70. 

Of course, judges can retire sooner if they wish, and a few do so to return to the practice of law.  Since a first-year associate at a large law firm earns more money than a judge of the Court of Appeals, it is not surprising that some judges trade in their robes early.  They are called "Judge" anyway by their colleagues, as a courtesy. A few may act as if they were still judges, but most are genial additions to their firms.
 
Before Judge Rosenblatt's departure in December, the 14-year term of Judge George Bundy Smith had expired in September.  Judge Smith had been the only African-American on the court, but not the only Smith. Governor Pataki appointed Robert S. Smith, a distinguished lawyer in private practice and father of the blogger Ben Smith in November 2003. Governor Cuomo had appointed George Bundy Smith in September 1992, to a term expiring in September 2006.  Governor Pataki then chose Justice Eugene F. Pigott, Jr. of Grand Island (a 33 square mile island in the Niagara River, northwest of Buffalo), a European American, and an Appellate Division justice in the fourth department, to succeed Smith. 

That left no African-American judge on the court, which is a significant omission in a diverse state like New York.  Judge Rosenblatt, was on the Appellate Division for the second department came from Dutchess County, and Pataki wanted to replace him with another upstate jurist, perhaps a more reliable conservative.  Rosenblatt's term did not expire until December 31, the same day Pataki left, so the governor couldn’t replace him directly, but he would not have had to have been a genius to have perceived that Governor Spitzer's appointment to replace Rosenblatt was likely to be an African-American, who would really be filling the G.B. Smith vacancy. A Democratic governor could hardly perpetuate a lily-white court without alienating much of his electoral base.
 
The judicial screening panel presented Governor Spitzer with a list of six lower-court judges, and one lawyer in private practice, of whom just two were African-Americans.  They were Justice Theodore T. Jones, Jr. of Kings County, and Justice Juanita Bing-Newton, administrative judge of the New York City Criminal Court.   On January 14, Governor Spitzer chose Jones, who had come to prominence by complying with the Taylor law and fining Roger Toussaint and the Transit Workers Union $2,500,000 for their illegal subway strike in December 2005. Judge Jones was first elected to the bench in 1989, when Borough President Howard Golden was the Kings County Democratic leader.

  The New York City Charter was later amended to prevent such dual office-holding.  Mr. Golden resigned as county leader, and was succeeded by Clarence Norman, Jr.  He vacated that office after a felony conviction. The current county leader is Assemblyman Vito Lopez.   Assemblyman is a State office, and not subject to the City Charter provision prohibiting simultaneous incumbency in both party and public office.
 Governor Spitzer's choice was, in effect, somewhat more limited than one out of seven.  There are many highly intelligent and fair-minded judges and lawyers in New York State who could serve ably on the Court of Appeals.  If the governor wishes, however, to factor in ethnicity, gender or geography in the interest of diversity, or for any other reason, his options would be fewer than seven.

Relative Peace Reigns Through 1971.
 
Court of Appeals judges were elected by the people state-wide in New York State until 1977, when the State Constitution was amended by referendum to give the governor the power of appointment.  In days of yore, Democrats and Republicans had often agreed to bipartisan nominations, especially when more than one judge was to be elected at one time.  Court of Appeals judges had frequently served on the Appellate Division.  But those tranquil days came to an abrupt end.

 1972 -  Nixon Carries New York

Political greed and personal ambition frustrated this division of the spoils in 1972.  In that year, due to retirements, there were three vacancies to fill, and normally a bipartisan slate or candidates from both parties would be agreed to by political leaders.   However, Joseph F. Crangle, the Erie County Democratic leader and the party's state chairman, wanted the whole pie, so the Democrats nominated three candidates on their own.  The Republicans then did the same. 1972 happened to be the year that President Nixon clobbered Senator George McGovern, winning 49 states (all but Massachusetts).  The three Democrats were swept away by the political tide, and the three Republicans were elected to the Court of Appeals.

1973 - Breitel v. Fuchsberg
   
In 1973, a new problem occurred.  Jacob Fuchsberg, a wealthy negligence lawyer from New York City, sought the highest judicial post in the State. He defeated other Democrats in the primary, and then in the general election ran against Charles D. Breitel of the Court of Appeals for the position of Chief Judge. 

There had been a custom that when the Chief Judge retired, the senior associate judge became chief, the court being regarded as somewhat above politics.  The Democrats, seeking revenge for their wipeout in 1972, declined to cross-endorse Judge Breitel and approved two other candidates at their state convention.  Both were defeated in the primary by Fuchsberg, who used his money to get on the ballot by petition.  In November, Breitel, on the Republican, Conservative and Liberal lines, defeated Fuchsberg, the Democrat, and became Chief Judge.

1974 - Watergate Helps Democrats
 
Breitel's victory for chief created a vacancy for his seat as associate, which under the law at the time, was to be filled at the next election, which was in 1974.  That year, there were two vacancies. Fuchsberg ran again, along with Judge Lawrence H. Cooke, a widely respected appellate division judge from Sullivan County, and Judge Harold A. Stevens, an appellate division justice in Manhattan and the first black to serve on the high court.  The Democratic state convention nominated Cooke and Stevens.  Fuchsberg again entered the primary by petition and defeated Stevens.  In the wonder world of New York politics, Stevens also ran as the candidate of the Republican, Conservative and Liberal parties, whereas Fuchsberg was on the Democratic line alone.
 
As luck would have it, just as 1972 was a big Republican year, 1974 was the year of Watergate, which led to Democratic victories nationwide.  Hugh Carey was elected Governor over Malcolm Wilson, and Fuchsberg defeated Judge Stevens, who had been sitting on the Court of Appeals, temporarily filling the Breitel vacancy..

That was thirty-two years ago. Today's legislature might want the judges chosen or approved by the speaker as well as the senate majority leader, or at least confirmed by both houses There have been important lawsuits between the governor and the legislature over the state budget.  Why should the governor a party to these lawsuits get to pick all the judges? As you know the legislature now picks the comptroller and attorney general in case a vacancy occurs.

Enough Already

After three years of political turmoil, the legislature and the press had had their fill of elections for the Court of Appeals.. Seeking to avoid the spectacle, expense and uncertainty of state-wide judicial elections, and to frustrate ambulance chasers, shysters or anyone else with a law degree who wished to begin a judicial career at the top, the Legislature proposed the current method in which the governor selects from a blue ribbon panel's recommendations. 

A constitutional amendment must be approved by two successive legislatures, and then go to the people in a referendum. The amendment came up for a vote in 1977 and was approved. It carried by a heavy vote in New York City, although it lost upstate.  In those days, upstaters voted no on almost everything, on the theory that if politicians proposed any thing, it was either no good or would cost money, more likely both.
 
Now you know how New York State came to have appointed judges on the Court of Appeals. However, we still have popular election of judges for the Supreme Court, which is the state's principal trial court.  The public usually votes on the basis of gender, ethnicity or party loyalty.  With regard to the little known nominees, all they know is what they can divine from reading their names and places on the ballot.

Back to Brooklyn, The Scene of the Crimes
 
The case the Supreme Court accepted for review is about choosing the party’s candidates for Supreme Court not by primaries, but by judicial conventions. In some counties, a dominant party’s nomination is tantamount to election, as they used to say when Mississippi was a solid Democratic state.  It is still the case for Democrats in Brooklyn. 

Voters elect judicial delegates, a dozen or so per assembly district, who assemble in September at a convention to choose the party’s nominees.  In fact, the hundreds of delegates are usually party faithful, put on the ballot so they can follow the leader’s dictates, which they do.  Over the years, the conventions in Brooklyn and other counties have simply ratified the choices of the political leaders who selected the loyal delegates. The process is called indirect elections, and it was formerly the way district leaders were chosen, before Carmine DeSapio, to his credit, reformed that system by insituting direct election of political party district leaders.  

The convention system is similar in a way to appointed judges, except the appointing officer is not the elected governor, who must choose from a list of qualified candidates, but political bosses, who can pick anyone they like. These deciders can be influenced by personal economic considerations while choosing judicial candidates.

Crooklyn Is Not Necessarily Alone, It Is Simply the Most Egregious
 
It has been said often that Brooklyn has the best judges money can buy, but corrupt customs are not confined to one county in New York State.  In other areas, there may be more sophisticated arrangements which elude detection, and no complaining candidates who did not get their money’s worth. But even if the judgeships were given out free of change to old friends, we would still be far from a system which provides equal justice to all, which is what the courts are supposed to provide.

The inscription on the New York County Court House, where I first worked after graduating from law school reads “The true administration of justice is the firmest pillar of good government”. When judgeships are bought and sold or awarded on the basis of nepotism, cronyism or subservience to political leaders, the administration of justice is likely to be the weakest pillar, with good government becoming an unattainable vision. 



Note One

You can see from this brief excursion into judicial selection for the Court of Appeals how complex and nuanced the issue actually is, and how what appears to be is not necessarily so.  As W.S.Gilbert (not Cole Porter or Noel Coward, as some  believe) wrote in 1878.
 
"Things are seldom what they seem;
Skim milk masquerades as cream."
 
In case you were uncertain, Gilbert was the writing partner (librettist) of the composer Arthur Sullivan.  The quoted couplet appears in H.M.S. Pinafore.  It is sung by Buttercup, who was addressing Captain Corcoran..



Note Two

Thanks are due to Jerry Skurnik for his invaluable assistance in collecting facts for this article.  Do not blame him for any of the opinions expressed.  Mr. Skurnik traveled with Judge Lawrence H. Cooke when he campaigned by driving around the state in 1974 in his own car.  Jerry reports that Judge Cooke was scrupulous about parking, going into a lot if he could not find a legal space.  "Nobody's going to give me a break," he said at the time..   In his fifth year on the Court of  Appeals (1979),  Judge Cooke was appointed Chief Judge by Governor Carey.  He served until 1984, when he retired.


 
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