New York's political cognoscenti will be scrambling this week to sort out the winners and losers in the wake of a court decision handed down Friday by a U.S. district judge in Brooklyn overturning the way political parties nominate justices to the state Supreme Court.
Judge John Gleeson of the Eastern District ruled that the state Legislature needs to change the current system to make these elections more democratic. He ordered that on an interim basis, until the Legislature acts, these judges are to be elected in direct party primaries.
Unlike other elected posts - including party positions - state Supreme Court justices have been nominated not by a direct vote of enrolled voters in a primary election, but by party judicial conventions. Delegates to these conventions are elected in the primary, but voters have not a clue to whom these delegates are pledged. More often than not, the delegates, running in slates in each Assembly district, don't know for whom they will be voting either. That word comes at the convention from the county party bosses.
The judicial slates are often headed by popular local political figures in order to ensure an easy victory from a confused electorate. More often than not, these slates run unopposed. Voters rarely gain the opportunity to participate, even indirectly, in this process.
The lawsuit was brought by a bipartisan group of nine plaintiffs, including, most notably, a maverick Brooklyn surrogate, Margarita Lopez Torres, represented by lawyers from the Brennan Center for Justice at the New York University Law School. The question now is whether the political establishment will accept the ruling or attempt to overturn it on appeal, an action that is sure to draw harsh criticism and the ire of the city's editorial boards.
Who are the winners and who are the losers?
Voters, who for the first time get meaningful choice in these elections, are clear winners.
The big losers are the city's Democratic (and perhaps one Republican) county leaders, who lose one of the most potent opportunities for patronage. It is not just the choice of judges that is impacted. Each judge controls several jobs. Even more importantly, each also determines which lawyers are assigned various guardianship and receivership posts, a multimillion-dollar industry in each county. These judges even determine which newspapers are assigned to run legal notices. In the protocol of the courthouse, our judges routinely hand these choices to the party leaders.
Political consultants are big winners. If this decision holds, they suddenly have the opportunity each year to help elect perhaps a score of judges, powerful, well-paid posts with 14-year terms that are sure to draw plenty of well financed hopefuls.
Prospective judges, if they can get themselves on the ballot, no longer will need to go hat in hand to the political bosses. But they will have to raise money and run campaigns. For them this decision is a double-edged sword.
Sitting judges who seek re-election now must be willing and able to make their case to the voters rather than the bosses. In some cases, this will not be a welcome development.
Expect the legal community to be eager to raise money for judicial candidates with the expectation of a more direct path for influencing the selection of judges and possibly exerting a greater degree of influence over the courthouse.
Party leaders become losers in other, more subtle ways.
That is because the current system also gives party bosses other advantages. Candidates for the Supreme Court justice are selected after the primary, a golden opportunity for party leaders to fill other posts without having to involve those pesky voters.
In 1997, a popular incumbent city council member of the Bronx, Michael DeMarco, ran for re-election in the Democratic primary, winning easily. A week later, he was nominated by the judicial convention for a vacant judgeship. This created a vacancy for the Democratic nomination for council, which was then filled by the party bosses, deftly and legally avoiding what would have certainly been a contested primary.
And here's a little secret the party leaders probably don't want you to know: Unlike other public offices, anyone enrolled in any party can run for a judgeship in the primary of a party he or she is not enrolled in. Thus, Republicans can run in the Democratic primary and vice versa.
Can this work? Well, just ask Civil Court Judge John Wilson of the Bronx. Civil Court judges are currently nominated in party primaries, just as Supreme Court judges will be if the federal court judge's ruling stands,
In September 2004, Judge Wilson, having circulated petitions and secured a place on the Democratic primary ballot, actually upset the choice of Bronx Democratic party organization. It was then smooth sailing to victory in the November general election. Judge Wilson is an enrolled Conservative Party member. Yes, a Conservative was elected to a judgeship in the bluest of all New York City counties. Can this happen now with the Supreme Court justices? Absolutely, now that the voters, not the bosses have the final say.
The old method is clearly designed, as Judge Gleeson wrote in his 77-page decision, to be "an opaque undemocratic selection procedure that violates the rights of the voters and the rights of candidates." Whether a federal court has the right to strike down a state law, which, while indefensible morally and ethically, is still the law as enacted by the legislative branch, remains to be seen. But, in the meantime, city's political bosses will be squirming.