Federal Judges Panel Mulls Wresting Control of Trial Judge Selection From Lawmakers

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The New York Sun

A panel of federal appellate judges is considering whether to take control of selecting trial judges in New York away from leaders of political parties.

An overflow-crowd yesterday watched a panel of judges for the 2nd U.S.Circuit Court of Appeals pepper lawyers with questions about whether the political process for picking judges is so undemocratic as to be unconstitutional.

One judge, Chester Straub, wondered if it would be constitutional to allow a hypothetical Mr. X or Ms.Y to nominate the judges to the state Supreme Court, New York’s general trial court.


The topic of judicial selection has emerged as a pressing topic after a federal judge declared New York’s unique system of judicial nominating conventions to be unconstitutional this January. The judge, John Gleeson of U.S. District Court in Brooklyn, found that the party delegates who are elected to nominate judges often deferred to the decisions of a single party leader.

Those annual conventions, Judge Gleeson found, allowed the county par ty leader to control which candidates received the party’s nomination for the general election.Yesterday the panel of judges did not indicate how it would ultimately rule, although a series of comments from the bench suggested that the judges had not yet been won over by Judge Gleeson’s analysis.

“Maybe the Constitution does let totalitarianism reign,” one judge, Sonia Sotomayor said, as the questioning turned to whether the Legislature was wrong to allow party leaders to have a direct role in nominating judges.


This latest challenge to the system of judicial selection in New York, began in 2004, when a civil court judge, Margarita Lopez-Torres, brought suit against the State Board of Election claiming that her poor standing within the Democratic party organization had ruined her chances of success at the nominating conventions. Judge Gleeson found that her troubles with the Brooklyn Democratic party apparatus date back to her refusal to allow then party leader Clarence Norman to decide whom she would hire as a law clerk.

That tale of party politics and pa tronage failed to impress yesterday’s panel. When a lawyer for Judge Lopez-Torres, Frederick Schwarz Jr., retold her story, Judge Straub stopped him.

“That’s politics,” said Judge Straub. “Where’s the constitutional infirmity?”


One of the thorniest issues facing yesterday’s panel involves what its next

move might be if it decides to uphold Judge Gleeson’s decision. Judge Gleeson had ordered that party primaries be held in lieu of nominating conventions until the Legislature developed a more permanent solution. He later stayed that order, which means that the nominating conventions will be used to select judges for 25 vacancies on the state Supreme Court this year.

But the panel of judges seemed uncomfortable with the possibility that it finds the current system to be unconstitutional but that the Legislature does not act to put in place an alternative nominating process.

Judge Straub asked: “Do we have the power to order the state Legislature to act within a certain amount of time?”

A lawyer for the New York County Democratic Party, Andrew Rossman, encouraged the court, should it uphold Judge Gleeson’s decision, to order Judge Gleeson to instruct how the nominating conventions can be made more democratic. Mr. Rossman’s proposal of reforming the system of nominating conventions is similar to the position that many within the legal community, including the state’s chief judge, Judith Kaye, and Mayor Bloomberg’s top lawyer, Michael Cardozo, have taken.

But the question of who would be responsible for those changes, the state Legislature or a federal court,remained.

“You would have us remand it to Judge Gleeson to supplant the Legislature and fine-tune the convention system?” Judge Straub asked.

The New York Sun

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