A Priority for Spitzer

If Governor Spitzer intends to fulfill his campaign promise of “Day One, Everything Changes,” he should put reforming the judicial selection process high on his agenda.For the Appellate Division of the state Supreme Court has lost the services of two seasoned senior justices. L. Paul Kehoe and Thomas Adams, elected to the Supreme Court 14 years ago, were swept out of office on Election Day along with Republican candidates for other offices by voters fed up with the Iraq war and a scandal-ridden Republican Congress, although the justices had nothing to do with those issues.Appellate Division justices are appointed from the ranks of the state Supreme Court. The 14-year terms of both justices expired at the end of 2006, so they had to run for re-election — Justice Kehoe upstate and Justice Adams on Long Island — in order to continue serving on the Appellate Division. Since they ran as Republicans, and were not also endorsed by the Democratic Party, they lost. This is an unfortunate consequence of New York’s constitutionally mandated system of electing most judges. It is time for this to change.Judicial elections are rarely decided on candidates’ qualifications. In New York City, political demographics dictate that Democratic judicial candidates are guaranteed election. Outside the city, Republican judicial candidates predominate unless there is a salient issue, unrelated to judicial qualifications, that overwhelms the electorate. Such an issue dominated this year’s election, and voters went down the Democratic column, ignoring the superb qualifications of Justices Kehoe and Adams.Ruling on Lopez Torres v. New York State Board of Elections in January 2006, U.S. District Court Judge John Gleeson declared unconstitutional the state’s system for selecting nominees to run for election to the Supreme Court, whereby the parties held judicial conventions, often controlled by party bosses. In August, the U.S. Court of Appeals for the Second Circuit upheld that ruling.Now, under court order, party nominees will be chosen in party primaries unless the Legislature decides on an alternative that is constitutional. This means that candidates, including of course incumbents, will have to scrounge around for votes twice — first in the primary and then in the general election.If experiences in primary elections for lower-court judgeships, like for the Civil Court in New York City, are predictive, these primaries will be low-turnout affairs with voters selecting candidates based on the actual or perceived ethnicity of the candidates.Take, for example, the 2004 election for countywide Civil Court in Brooklyn. Nine candidates competed in the Democratic primary. However, only 10% of the approximately 800,000 Democrats voted in the primary. The three winning candidates received 30,556; 26,487, and 23,569 votes. This meant ultimately that candidates who received the votes of 3% to 4% of the Democratic electorate won the prize of serving for 10 years on the bench.Winning the primary was tantamount to election since no Republican has won a judgeship in Brooklyn in over 50 years. When you factor in a total voter registration of 1.1 million in Brooklyn, it came down to 2% to 3% of the registered voters in the borough choosing 10-year judges. When analyzed, the results in the primary election indicated that the three successful candidates won based on ethnicity. Districts where one race or ethnic group predominated returned candidates of that group.Candidates who have usually won primary elections have been those lawyers who either spent years laboring in the apparatus of the majority party, or who made enough money in their private law practices to be able to spend over $100,000 — sometimes even twice that amount — in an effort to swamp the voters with mailings and posters and to pay candidates for other offices to allow them space on their palm cards.Bar associations have screening panels, which interview judicial candidates and review their qualifications. They issue ratings. But only a scant number of voters pay attention to them.It is scandalous to continue a system of judicial selection where candidates are chosen by a minute percentage of the electorate in primary elections and where decisions in the general election are based on factors having nothing to do with qualifications.When the Legislature saw that New York City community school board elections were decided by low turnouts, they abolished them. Should judicial elections be left to the vagaries of primary election turnouts that are lower than the old community school board elections? It is time that we admit that the election system does not produce the most qualified candidates and instead results in the defeat of well-qualified incumbents. True merit-based selection of trial judges in this state is a sine qua non for having a nonpartisan, qualified judiciary in which we can feel confident.One of Governor Spitzer’s first priorities should be to persuade the Legislature to place before the people a constitutional amendment to convert the judicial selection process into an appointive one, where selections will be based on merit instead of on the Iraq war and the foibles of some Republicans in Congress.Mr. Maslow, an attorney, served as legal counsel for the New York City Board of Elections between 1988 and 1992 and is now in private practice, representing candidates in election-law matters.

A Priority for Spitzer

A Priority for Spitzer

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