9 Rebuff Brooklyn Court Reformers

In the process of upholding New York's oft-criticized method of selecting state judges, the U.S. Supreme Court affirmed the rights of political parties to pick their candidates with little input from voters.

Yesterday's ruling is a boon to the leaders of the county Democratic organizations in New York City, leaving them with one of their last remaining patronage powers: a strong degree of influence in selecting state judges. A coda to the state's century-old debate over how best to pick judges, the unanimous court decision will stymie legislative efforts to amend the unusual system of party conventions by which New York picks many of its judges.

FROM THE ARCHIVE: An Editorial, 'Lopez Torres Before the Nine' | An Editorial, 'Spitzer v. Lopez Torres'

The party conventions, which meet across the state in September for the sole purpose of nominating judicial candidates to the state Supreme Court, are unique to New York. They have long been criticized as a sham because they often feature little debate and evaluation of the candidates, with the delegates present often bestowing the party nomination to the candidates favored by the local party boss. One candidate, Margarita Lopez Torres, who was spurned by Democratic officials in Brooklyn, challenged the selection process in court. She convinced a federal district judge and a panel of three judges from the 2nd U.S. Circuit Court of Appeals that her First Amendment rights as a candidate had been violated, as had the rights of voters who had little voice in the nominating process.

In rejecting her claims and overturning the two lower courts, the Supreme Court framed the case as having less to do with Ms. Lopez Torres and voter participation than with the rights of political parties to do as they will without judicial interference.

"A political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform," Justice Scalia wrote for the court.
That remains the case, Justice Scalia wrote, even when rank-and-file party members are excluded from the process by which a candidate is ultimately endorsed.

"Party conventions, with their attendant 'smoke-filled rooms' and domination by party leaders, have long been an accepted manner of selecting party candidates," Justice Scalia wrote.

Across the country the impact of the decision will be felt more for what it does not change — namely the right of parties to hold conventions to select candidates in a wide variety of instances — than for what it does do.

"Their position sought to fundamentally transform party politics," a lawyer in the Washington office of Gibson, Dunn & Crutcher who represented New York State's Board of Elections in the case, Matthew McGill, said.

New York is the only state to use party conventions to pick which judicial candidates get the Democratic or Republican nominations on the November ballot. Although it is not difficult to get on the ballot as an independent, voters usually know little about judicial candidates and frequently vote the party ticket. In New York City, winning the Democratic nomination as a judicial candidate is usually tantamount to winning the election. It is the same with winning the Republican endorsement in some counties upstate.

The present system of the conventions dates to 1921, after the Legislature enacted the framework of the conventions, if not the rules that govern the proceedings. Prior to that, New York had tried out an appointment system under the governor and open primaries, both of which are now being touted as a better method by various factions in the legal community.

The nominating conventions are used only for selecting candidates to the state Supreme Court, which is New York's basic trial court — the less august-sounding Court of Appeals is New York's highest court. There are more than 300 sitting state Supreme Court justices across the state selected through this process.

Critics of the nominating conventions say the process hides that county political leaders actually do the picking of judges behind the scenes. Critics point out that challenger candidates do not have a right to address the delegates at the convention, making it difficult to solicit votes. Delegates are picked only weeks before the convention, leaving candidates little time to meet with them beforehand.

These impediments and others, lawyers for Ms. Lopez Torres argued, prevented her from getting the Democratic nomination, despite strong support from the voting public when she ran for a spot on a lower court. In elections, she has managed to win spots on civil court and surrogate's court, where she now sits.

But criticisms of the convention system, Justice Scalia suggested, were beside the point.

"None of our cases establishes an individual's constitutional right to have a 'fair shot' at winning the party's nomination," Justice Scalia wrote.

Still, in a concurring opinion, Justice Stevents hinted at misgivings over how New York picks its judges. "Our holding," he wrote, "should not be misread as endorsement of the electoral system under review."

Justice Stevens continued: "I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: 'The Constitution does not prohibit legislatures from enacting stupid laws.'"

Ms. Lopez Torres's suit was filed in the midst of a much-publicized investigation by the district attorney in Brooklyn, Charles Hynes, into whether political bosses were selling their support to judicial candidates in exchange for cash. While no evidence to support that claim has emerged publicly, the investigation did disclose corruption on the part of individual judges.

"New York has compiled an 87-year record of anti-democratic exclusion, unaccountability, and corruption in judicial selection," a lawyer for Ms. Lopez Torres, Kent Yalowitz of Arnold & Porter, said. "These problems will not go away because of the U.S. Supreme Court's decision."

In an interview, the chairman of the Kings County Democratic Committee, Assemblyman Vito Lopez, downplayed his influence at the conventions, saying that ultimately "the delegates make the decision of who is advanced for judge."

He noted that Brooklyn had a committee to screen judicial candidates before the delegates would consider them.

"I think I know two of the 25 people on it," Mr. Lopez said.

Figures ranging from Mayor Bloomberg to Chief Judge Kaye have called on the Legislature to amend the party convention process to make them more candidate-friendly. The Senate has passed a bill in the past that would trade the conventions for an open primary system. Given that there was little action even as two lower courts declared the nominating conventions unconstitutional, yesterday's Supreme Court decision will likely kill those legislative initiatives.

"I would say that in the face of the Supreme Court decision, I don't know if the Legislature will be amenable to change this process," a spokesman for the State Board of Elections, which defended the conventions, Lee Dahglian, said.

As the Supreme Court ruled only on Ms. Lopez Torres's First Amendment arguments, she is free to ask for a court ruling on her equal protection claims against the party conventions.