Lopez Torres Before the Nine

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

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NY Sun
NEW YORK SUN CONTRIBUTOR

This morning the justices of the United States Supreme Court will give ponder to a problem that has bedeviled political philosophers from Aristotle onwards—what to do when democratic government isn’t quite working the way it should. The particulars of New York State Board of Election v. Margarita Lopez Torres are the judicial nominating conventions in Brooklyn, where political bosses hand-pick judges to serve on the state’s basic trial court, which in New York is called state Supreme Court.

In theory, the system is a model of republicanism that ought to make us all proud. Free citizens form political parties. Members of the parties — in this case, the Republicans and the Democrats — decide how they want to select their candidates. Through the state Legislature, they set up a system so they can vote for delegates to represent them at conventions. The delegates, once elected, then convene publicly and nominate from the judicial hopefuls several to run against the nominees of the opposing party. Come Election Day, the people choose from a ballot listing these nominees and any independent candidates who run.

It’s hard to imagine what fault James Madison could find with such a process save for the fact that the results have been embarrassing. At least in New York State, where the bench has become a stubborn refuge of political patronage. The delegates to these nominating conventions do not exhibit any delegate-like qualities; instead they wait for the local party boss to signal which candidate ought to be selected. In Brooklyn in recent years, this meant waiting for the nod from Clarence Norman, who is now in prison.

The process is such a sham that judicial candidates aren’t always allowed even to address the convention. In the end, a bunch of political hacks choose among candidates they know nothing about. But the voters appear to be delighted with the system. They have generally elected the nominees of the Democratic Party in Brooklyn without so much as a by-your-leave to the Republicans. The judges’ performance hasn’t always been pretty; one state Supreme Court judge from Brooklyn is in the hoosegow right now and another was released last year.

Now comes Margarita Lopez Torres, who sued the State Board of Elections, alleging that the rights of voters and candidates such as herself were violated by this process. Because the nominating conventions are permitted by a Legislative statute, Ms. Lopez Torres argues that New York state is enforcing an unconstitutional system.

“New York’s system,” her lawyers at the Brennan Center for Justice at New York University write,”is neither a legitimate exercise in democracy nor a delegation of appointive power to accountable state officials. Rather New York vests de facto power to appoint supreme court judges in local party bosses.”

Two lower federal courts agreed with Ms. Lopez Torres. But the Supreme Court granted certiorari on an appeal by the state, which is the defendant. The state argues that while the politics of judicial selection may not be pretty, no Constitutional violation has occurred. The inadequacies of the current setup, lawyers for Attorney General Cuomo argue in a brief, “are the product of the private conduct of party leaders and voters.”

There is nothing, in other words, for the Supreme Court to correct. “If the system has been hijacked by party leaders to serve their own interests rather than the party’s, it is up to the party members to rein in those leaders,” Mr. Cuomo’s brief said.

Now wouldn’t you like to be a fly on the wall when the nine sit down to sort this one out. It wouldn’t surprise us were they to conclude that judicial selection in New York could stand to be improved. But neither would it surprise us were they to turn out to be loath to make the improvements that, it could well be argued, it is the business of the voters or their legislature to make. It is the voters who are regularly given the opportunity to throw out of office whomever they dislike — or to form new political clubs to rival the established ones.

Judge Lopez Torres is an impressive, admirable individual. No wonder she eventually won a seat on Surrogate’s Court. The court decision she seeks would have the good effect of ending the nominating conventions in New York. But it would probably also have the bad effect of undermining the rights of Democrats and Republicans across the country to form associations and endorse candidates. It would set a precedent for federal courts to start disbanding the conventions of political parties every time a local group of Democrats or Republicans failed to live up to the ideal of representative democracy. Republicanism has served our people well for centuries. Judicial politics in New York are an aberration, and it’s hard to see why fixing New York’s problems should require the federal high court to curb the liberties of other Americans.

NY Sun
NEW YORK SUN CONTRIBUTOR

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.


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