How Judges Are Picked
By
HENRY STERN
The Supreme Court decided to take the case of whether the New York State system of nominating judges by judicial conventions violates the Constitution of the United States. A district judge in Brooklyn found that it did, and his decision was upheld, 2-1, by the Court of Appeals for the Second Circuit.
The selection of judges has long been a matter of public controversy. Federal judges are appointed by the President, subject to confirmation by the Senate, and serve for life.
State judges are either appointed or elected under a variety of systems.
Unable in one day to write an article on the broad topic of choosing judges, we focus ourselves here on the case at hand and the recent history of the New York State Court of Appeals with regard to how its judges were, and are now, selected.
In the Empire State, Court of Appeals (the highest court) judges are appointed by the Governor from a list of seven nominees provided by a judicial screening panel. This year Gov. Spitzer filled his first vacancy, caused by the departure of Judge Albert Rosenblatt, who reached mandatory retirement age. Prior to Judge Rosenblatt’s retirement, the 14-year term of Judge George Bundy Smith had expired. Judge Smith was the only African American on the court. Gov. Pataki chose Eugene Pigott, Jr. of Grand Island (a 33 square mile island in the Niagara River, northwest of Buffalo), a Euro-American, to succeed Smith.
That left no African American justice on the court, which is a serious omission in a diverse state such as New York. However, Judge Rosenblatt was a Buffalonian, and Pataki was really replacing him. He could not do so directly because Rosenblatt’s term did not expire until Pataki’s did, but he may have correctly perceived that Gov. Spitzer’s appointment to replace Rosenblatt would really fill the Smith vacancy, since a Democratic governor could hardly perpetuate a lily-white court.
The judicial screening panel presented Gov. Spitzer with a list of seven lower-court judges, of whom just two were African Americans. They were Judge Theodore T. Jones, Jr. of Kings County, and Judge Juanita Bing-Newton, administrative judge of the New York City Criminal Court.
Spitzer chose Jones, who had come to prominence by complying with the Taylor Law and fining Roger Toussaint and the Transit Workers Union $2,500,000 for the illegal subway strike in December 2005.
The governor’s choice is therefore somewhat more limited than seven.
In fact, Court of Appeals judges were elected in New York State until 1977, when an amendment to the State Constitution was approved by the voters. In prior years, the Democrats and Republicans had often agreed on slates, especially when more than one judge was to be elected. Political greed and personal ambition frustrated this division of the spoils, and in one year three Democrats were elected and no Republicans.
The influence of money and media also reached into elections for the Court of Appeals. A New York City negligence lawyer, Jacob Fuchsberg, decided to run in 1973, and in an expensive (for then) campaign, defeated Judge Charles Breitel, a highly-regarded Republican jurist on the Appellate Division of State Supreme Court. Breitel was himself elected to the Court of Appeals the next year, where he and Fuchsberg maintained their hostile relationship.
Seeking to avoid the spectacle, expense and uncertainty of state-wide judicial elections, the Legislature proposed the alternate method of the governor selecting from a panel’s recommendations.
That was 30 years ago, today’s Legislature might want the judges chosen or approved by the Speaker and the Senate majority leader, or at least confirmed by both houses rather than the Senate alone.
The case the Supreme Court accepted for review is about choosing the party’s candidates for Supreme Court not by primaries, but by judicial conventions. In some counties, a dominant party’s nomination is tantamount to election – such is the case for Democrats in Brooklyn.
Voters elect judicial delegates, who are usually party faithful, so they follow the leader’s dictates. Over the years, the conventions in Brooklyn and other counties have simply ratified the choices of the political leaders who selected the loyal delegates.
The convention system is similar in a way to appointed judges, except the appointing officer is not the elected governor, who must choose from a list of qualified candidates, but political bosses, who can pick anyone they like. These deciders can be influenced by personal economic considerations while choosing judicial candidates.
It has been said often that Brooklyn has the best judges money can buy, but corrupt customs are not confined to one county in New York State. In other areas, there may be more sophisticated arrangements which elude detection, and no complaining candidates who did not get their money’s worth. But even if the judgeships were given out free of charge to old friends, we would still be far from a system which provides equal justice to all, which is what the courts are supposed to provide.
The inscription on the New York County Court House, where I first worked after graduating from law school, reads “The true administration of justice is the firmest pillar of good government.” When judgeships are bought and sold or awarded on the basis of nepotism, cronyism or subservience to political leaders, the administration of justice is likely to be the weakest pillar, with good government becoming an unattainable vision.
StarQuest@NYCivic.org |