A Better Supreme Court

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.

The New York Sun

Wednesday’s unanimous decision by the United States Court of Appeals for the Second Circuit is a blow to the power of political bosses. The case, about how Supreme Court justices are selected, is important. But it also creates a serious problem for the state legislature, which has the opportunity to come up with a new way to select judicial nominees that will pass Constitutional scrutiny.

New York State has a completely mixed bag with regard to selection of judges. The highest court in the state, the Court of Appeals, consists of seven judges. Each is appointed by the governor when a term expires, or when a judge resigns or turns 70. The governor must choose from a list of seven lawyers selected by a screening panel. The governor’s selection of a judge goes to the state senate for confirmation.

The appointive system was approved by the voters in 1977, replacing the direct election of Court of Appeals judges, who ran on the ballot lines of political parties. The change was triggered when a wealthy negligence lawyer spent millions of dollars (a large sum at the time) on his own campaigns. He lost his first race but was elected the second time he ran. The intention of the change was to take the judiciary out of partisan politics, and it generally succeeded.

In New York State, the Supreme Court is not supreme. It is the highest of trial courts, but its judges decision are subject to two levels of appellate review. Primary elections are used to select party nominees to the civil court, while judges of the criminal court and the family court are appointed by the mayor of the City of New York, who uses a judicial screening panel to recommend candidates.

Supreme Court justices, however, have been selected by an odd mechanism called a judicial convention. This institution began in 1846, was superseded by primary elections in 1911, was restored in 1921, and has been the mechanism of choice ever since. The conventions are assemblies of faithful followers of political leaders. Although theoretically elected by the public, they are elected en masse and hardly anyone knows who they are. If there is no primary contest, which is usually the case, no election is needed. These insiders get together at a meeting, usually in a hotel room, where they ratify the choices previously made by party leaders.

This system was ruled unconstitutional in January 2006 by Federal Judge John Gleason, and on August 29, his ruling was upheld by a three-judge panel of the Second Circuit. The decision will stand unless reversed by the United States Supreme Court, which is considered unlikely.

The New York State legislature must now find a constitutional way to select judges, replacing the judicial convention. An obvious alternative is direct primary elections, but this method too has problems. First is the issue of massive spending by candidates.

Since candidates for the bench are usually relatively unknown to the public before they run, the money they spend will bear heavily on their chances of election. Second is the fact that most voters have no idea who the candidates are or what they have done, and many votes are cast on the basis of ethnicity and gender, since all the voters know are the names which are printed on the ballot. Judicial primaries thus face the twin challenges of excessive influence and public ignorance.

One possible way to pick judges would be for an impartial screening panel to prepare a list of well qualified candidates (not limited by number) and for the new judges to be chosen either by direct election, proportional representation or a lottery. This would reinforce the concept that justice is blind. It also recalls the words of William F. Buckley, Jr., candidate for mayor of New York City in 1965 (he received 341,226 votes), who wrote that he would rather be governed by the first two hundred names in the Boston phone book than by the faculty of Harvard University. Although Buckley was a member of the class of 1950 at Yale, his remark would apply equally to the New Haven phone book vis a vis his alma mater.

The architect of the judicial effort is Jeremy Creelan, an alumnus of the Brennan Institute for Justice. He said: “Under the current system, judges are beholden to party leaders and many well-qualified lawyers are never even considered for judgeships because they have no ties to party leaders. Allowing all well-qualified candidates to compete for their party’s nomination will help restore confidence in our courts.”

To the surprise of many politicians, a rotten system has been knocked out by a wholesome judicial intervention. Building a better system of judicial selection will be more difficult to accomplish, particularly if the task devolves on our self-serving boss-ridden legislature. But attention must be paid; progress has been made.

Mr. Stern is president of New York Civic and a blogger on public issues. He was New York City’s parks commissioner for 15 years under Mayors Koch and Giuliani.

The New York Sun

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