Congratulations are in order to the former chief judge of New York, Sol Wachtler, for his clear-eyed appraisal of how Empire State Democrats are destroying the independence of our state’s highest tribunal. One might even say they’re transforming the court into a sort of grand jury. It was Wachtler, after all, who famously quipped that grand juries are so compliant that prosecutors could get one to indict a ham sandwich. *

Wachtler offers a Hamiltonian warning against the Democrats’ drive to push the top court leftwards. Hamilton, Wachtler reminds us in a cable, “cut his political teeth in the New York State Assembly.” Plus, too, Hamilton stressed that the courts are “the bulwarks of a limited constitution against legislative encroachments.” There are, Wachtler tells us, “few things more dangerous to a democracy than a partisan directed judiciary.” 

Wachtler’s concerns arise from the machinations of the State Senate’s Democrats following the forced resignation of Chief Judge Janet DiFiore, who lost her post in what we see as a partisan putsch. It was her ruling overturning the Democrats’ gerrymander of state congressional districts that possibly flipped control of the House. New York’s left vowed, as Wachtler puts it in an op-ed today in the Albany Times-Union, “to get even.” 

They rejected Governor Hochul’s replacement nominee, a moderate, as out of step with “the values held dear by New Yorkers,” as Senator Michael Gianaris put it. Wachtler, himself a man of the left, takes exception to this mentality. Those “who would impose a ‘progressive’ agenda on our courts,” he tells us, “are no less dangerous than those who, later on, would impose a ‘conservative’ agenda on our courts.”

It’s a mistake, Wachtler says, to select judges for a “demonstrated ability to disregard the rule of law in order to promote a particular agenda.” Yet after nixing Ms. Hochul’s choice, Democrats backed another judge on the high court, Rowan Wilson, who favored the gerrymander. Reinforced by another judge to fill Judge Wilson’s vacant seat, Wachtler contends, Democrats want the court to “revisit and revitalize the rejected redistricting map.” 

Wachtler’s assessment of this as “cynical” strikes us as putting it mildly. That’s not to say we fail to see the incongruity of Wachtler piping up on political ethics. His career featured a startling fall from grace, even by the standards of New York, which saw Eliot Spitzer’s governorship implode after disclosures that he patronized prostitutes. Wachtler was found to have stalked and threatened an ex-lover and her family members. He served time.

Yet the former chief judge takes exception to Mr. Gianaris invoking Wachtler’s “disgrace” as a kind of window-dressing for the Democrats’ power grab today. “I did,” Wachtler concedes, “disgrace myself, and the court I was privileged to lead, by my bizarre and unlawful behavior.” Yet he observes that his personal failings are hardly a reason, as Mr. Gianaris suggests, to twist the judicial selection process now in such a partisan manner.

We’re not, by the way, suggesting that the contention over New York’s high court is analogous to the conservative critique of Israel’s supreme court. In the Jewish state the unicameral Knesset is trying to claw back its legitimate authority to choose its supreme judges in the absence of a written constitution with separated powers. The aim in Israel is to reform a process that has given the court, in effect, the power to select its own members.

“The fact that the Court of Appeals survived my disgrace is a tribute to the strength of a hallowed institution and the jurists who served with me and after me,” Wachtler contends in his op-ed. “I pray that it will survive the manipulations of the Senate majority.” Wachtler’s concerns about the future of the Court strike us as well placed. Let’s just say that as things stand now, it’s not looking good for ham sandwiches.

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* Wachtler tells us: “I always feared that I would be remembered only for my ‘ham sandwich’ observation; however, given my life’s trajectory, I would settle for that legacy.”