Plan To Alter Court Nominating Process Is Criticized

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The New York Sun

A program endorsed by the highest judge in the state will fail to fix a judicial selection process that a federal judge recently declared unconstitutional, the lead counsel of the federal case said yesterday.


In her annual State of the Judiciary address on Monday, Chief Judge Judith Kaye recommended changes to the practices of nominating conventions that political parties use to select their candidates for positions to the Supreme Court. The proposals that Judge Kaye endorsed are from a report released Monday by the Commission to Promote Public Confidence in Judicial Elections. Judge Kaye assembled that commission in 2003, also called the Feerick Commission.


“There is a real danger that by aiming so low the Feerick Commission proposals will produce a misunderstanding,” the lead counsel for the plaintiffs in the federal case, Jeremy Creelan, said. “Which is that the judicial convention system is consistent with the U.S. Constitution or reform.” The chairman of the Feerick Commission, John Feerick, could not be reached for comment.


On Monday, Judge Kaye said she believes the Feerick’s Commission proposals “should go forward, because they promise immediate improvement.” Those changes, she said Monday, “would result in a complete overhaul of the judicial district nominating convention system.” Efforts to reach her late last night were not successful.


The recommendations that Judge Kaye endorsed would give candidates the right to address the delegates of judicial nominating conventions, increase the amount of information delegates are provided with about candidates, and decrease the number of delegates in attendance.


“She was supportive of the need for reform,” Mr. Creelan, an attorney at the Brennan Center for Justice at the New York University School of Law, said of Judge Kaye. “Unfortunately the proposals suggested by the Feerick Commission would not fundamentally address the unconstitutional elements of that system.”


In January, a federal judge in Brooklyn ruled that New York’s process barred challenger candidates from a chance at the judicial nomination and denied voters any meaningful participation in selecting their Supreme Court justices. The court ruling depicted the control that party leaders have in deciding who receives the nominations.


The federal court also ordered primary elections be held to nominate candidates to the Supreme Court until the Legislature acts. Lawyers opposing Mr. Creelan have promised to appeal the ruling. The New York Supreme Court is a trial court; the state’s highest court is the Court of Appeals.


At least one legislator said he saw Judge Kaye’s recent speech as a setback for lawmakers seeking to permanently replace the system of nominations to the state Supreme Court with primary elections.


“For those folks who would like to stick with some form of a convention, the support of the chief judge makes that a more credibly tenable system,” Assemblyman Ryan Karben said. Mr. Karben, who sits on the Judiciary Committee, said he is concerned that the financial burdens of running primary elections will narrow the pool of candidates running for Supreme Court positions.


Mr. Karben said he did not prefer a system of open primaries to the reforms proposed by Judge Kaye.


He described the chief judge’s proposals as promising a “kinder, gentler judicial convention.”


Assemblyman Roger Green, a Democrat of Brooklyn, dismissed Judge Kaye’s recommendations by saying, “There’s always going to be support for the status quo, period.”


“I’m hopeful they give serious thought to open primaries,” Mr. Green said. “The broadest democratic participation would be the best way to go.”


Neither Assemblywoman Helene Weinstein, chairwoman of the Judiciary Committee, nor state Senator John DeFrancisco, chairman of the Senate’s Judiciary Committees, could be reached for comment.


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