Federal Judge John Gleeson of the Eastern District of New York ruled in 2006 that the judicial conventions through which party bosses have chosen State Supreme Court Justices for a century are unconstitutional. In a thoroughly documented decision, Judge Gleeson ruled that the convention system, in which judges are hand-picked by delegates chosen for that purpose, usually officers of local political clubs, deprives the public of its legal right to participate in the selection of judges. Under current rules, all judges in New York State EXCEPT Supreme Court Justices are either appointed by elected officials or chosen in open primary elections. The US Supreme Court said "not so fast", and ruled that the courts did not have the constitutional right to change the way New York chooses Supreme Court Judges .
posted by Oneshirt
Fri, 09/19/2008 - 11:10am
After the former county leader goes to jail for corruption connected with judicial elections, a U.S. Federal Judge Gleeson calling them unconstitutional - fixed - and extensive condemnation by the city’s newspaper editorial pages, the charade called the Brooklyn Judicial Convention continued like nothing ever happened. In fact like a wounded animal or king the situation has grown grave and depraved.
Nothing has been learned by the experiences of the past 5 years a delegate whispered into my ear when boss Vito was not looking. Something very bad is happening to our way of life and culture. Our system of democracy, separation of powers, built in political party conflict has failed and nobody cares. The business as usually continuation of the convention is proof that our culture has changed so much that exposure and shame which used to be enough to cause reform has been replaced by a get over society, where morality or doing what is right does not matter. What is even more frightening, if it was up to the press there would be no record. Only the Manhattan gadfly a modern day Thomas Paine made sure there was a public record.
Today's Daily News Editorial
“For a glimpse into the odious nature of how the political bosses make judges in New York, we direct your attention to a letter in Friday's Voice of the People by veteran court watcher Alan Flacks. On Tuesday, Flacks dropped in on the Brooklyn Democratic Party's ceremony for elevating faithful lawyers to the bench. The party calls it a convention. It's not. It's a charade, currently directed by boss Vito Lopez.” – September 19, 2008.
U.S. Judge John Gleeson Rules Judicial Conventions Unconstitutional
"The highly unusual processes (judicial convention - the lone state in the nation to elect judges this way) by which that extremely important office (Supreme Court Judge) is filled perpetuate local political party leaders control and deprive the voters of any meaningful role," the judge wrote in the decision. "The result is an opaque, and undemocratic selection procedure that violates the rights of the voters and the rights of candidates who lack the backing of local party leaders."
The Flacks letter to the Daily News Which Resulted in Today’s Editorial:
Sausage Factory Floor
Manhattan: I attended the Kings County Democratic judicial nominating convention Tuesday. It was orchestrated "Soviet-style." Short, sweet, lady- and gentleman-like, the script called for the eight candidates to be designated or redesignated without opposition, even for supposed "open" seats. Before adjournment, each judge candidate got up and gave a short thank-you speech. Every one of them expressed gratitude to the party district leaders for their support, and they also expressed effusive thanks to and praise of County Leader Vito Lopez (photo). One "re-up," John Leventhal of the Appellate Division, Second Department (after inquiring if the press was present) thanked now-imprisoned county leader Clarence Norman as well, and another called Lopez "the greatest county leader ever." After adjournment, I spoke with a number of delegates who voted "automatically" and didn't seem to know for whom they were voting. They didn't know, and were just told for whom to vote.
Brooklyn District Attorney says the Supreme Court election system corrupts
Charles Hynes: Amicus Curiae Brief in Judge Lopez Torres vs. NYS Board of Elections:
“New York’s uniquely constructed and statutorily- mandated nominating process for the state Supreme Court, which in effect places ultimate control over who becomes a state Supreme Court justice in the hands of powerful county political party leaders, creates and sustains a breeding ground for corruption and malfeasance and undermines the public’s confidence in the judiciary."
Feldman and his Friends Play the System
“Similarly unseemly was the role played at the convention by Jeff Feldman, a one-time party honcho who was indicted with Norman but won dismissal of charges. No longer exiled from the convention, Feldman helped run Tuesday's show.” -– NY Daily News Editorial, September 19, 2008.
Judge Gleeson, U.S. District Court Cited Jeff Feldman’s action in the decision
“Beginning in March of 2003, then candidate for Supreme Court Lopez Torres wrote repeatedly to the Kings County Democratic Committee to learn three basic things; (1) the date, time and place of the convention; (2) the names of the delegates, so she could lobby them; and (3) whether she could address the delegates at the convention. She did not hear from its Executive Director, Jeffrey C. Feldman until September 4, 2003, after she once again requested the information. Feldman response is difficult to reconcile with the defendants' gauzy characterizations of a democratic process open to all party members who seek the office of Supreme Court Justice. He began by mocking the request for a list delegates to lobby: "AI erroneously believed that a learned jurist, such as yourself, would be well aware that Delegates and Alternate Delegates to the Democratic Judicial Convention stand for independent elections in the Primary Election, yet to be held. Thus no such list existed "anywhere in the world," Feldman helpfully added. As for Lopez Torres's inquiry about addressing the convention, Feldman wrote as follows: "I suffer from the innocent belief that the floor of the Convention is open, only, to elected Delegates and their successors.” - Judge Gleeson, U.S. District Court
Besides the press also missing, from this year Judicial Convention, were most of the reformers who in the past protested actions at the convention. Only Central Brooklyn Independent Democrats president Chris Owens and past president Josh Skaller stood alone in opposing this year’s convention, handing out a newspaper to every delegate outlining needed changes to the way New York “elects” Supreme Court Judges.
U.S. Supreme Court Justice John Paul Stevens said Judicial Conventions are bad, declaring that :
“The Constitution Does Not Prohibit Legislatures From Enacting Stupid Laws.”
Since the U.S. Supreme Court ruling that the courts did not have the constitutional right to change the way New York chooses it Supreme Court Judges not one elected official has spoken out about changing the STUPID LAW. In fact the good groups which conspired with the elected officials before the U.S. Supreme Court ruling to allow Judicial Conventions to continue at the same time allowing candidates to petition there way onto the ballot are like the press missing action on this issue. In fact like the elected officials the good government groups have not commented on the STUPID LAWS.
Editorial - The New York Times - January 17, 2008
"A Defeat for Judicial Reform"
By upholding New York's machine-dominated system for selecting judges, the Supreme Court has dealt another setback to voters. The court has once again allowed political bosses to rig elections in ways that deny voters a meaningful role. New York's political power brokers are no doubt cheering, but they should not be allowed to triumph. Even if New York's method of selecting judges is constitutional, it remains unfair and undemocratic. It needs to be replaced.
New York State Supreme Court justices -- who despite their titles are trial-level judges -- are selected through a byzantine process. Primary voters select judicial delegates, who then meet in party conventions to choose their nominees. The conventions are generally controlled by political bosses, who often steer the nominations to candidates who deliver patronage back to the party machine. It's a disgraceful way to choose judges. They are supposed to be above politics.
It's also a system that makes the voters almost irrelevant. At the polls, they have to choose among judicial delegate slates -- when there are competing slates at all -- filled with unfamiliar names. It is a far cry from an actual party primary in which voters are allowed to choose among competing judicial candidates. The New York-based United States Court of Appeals for the Second Circuit, in ruling against the system, declared that it unacceptably burdened the constitutional rights of both candidates and voters.
The Supreme Court, unfortunately, disagreed. Justice Antonin Scalia, writing for the majority, dismissed the idea that the right of association requires a process by which voters have a meaningful opportunity to affect an election's outcome. The ruling is consistent with the court's recent decisions upholding the right of political bosses to gerrymander political districts. These days, the only election complaints that seem to move the court are ones by corporations and wealthy individuals who object to limits on their ability to spend on elections.
Four justices, in concurring opinions, cast doubt on the wisdom of New York's method of choosing judges. Justices Anthony Kennedy and Stephen Breyer noted that if the rules do not produce both the perception and the reality of a system committed to the highest ideals of the law, they ought to be changed and to be changed now. Justices John Paul Stevens and David Souter quoted Thurgood Marshall: "The Constitution does not prohibit legislatures from enacting stupid laws."
A stupid -- and undemocratic -- law is precisely what New York has. Now that the cudgel of a court order has been removed, we hope the Legislature will summon the wisdom and integrity to fix the system voluntarily. The odds of that happening are long, since the powers that be in the Legislature are the same ones that profit from the current corrupt system. It is, however, a cause that everyone who cares about a qualified and independent judiciary needs to keep fighting.
Federal Court Determines Party Bosses Control N.Y. Judicial Nominations
Tom Perrotta, Law.com, 01-30-2005
The system of electing Supreme Court justices in New York violates the rights of voters and judicial candidates and must be scrapped, a federal judge said Friday in a scathing ruling that could change forever the way judicial offices in the state are filled.
Eastern District of New York Judge John Gleeson enjoined the New York State Board of Elections from using the unique -- and likely unconstitutional -- system of conventions and delegates that now determines which candidates for Supreme Court judgeships appear on election ballots.
Gleeson said Supreme Court justices should be nominated by primary elections until the state Legislature enacts a new statutory scheme to replace New York Election Law §6-106.
"The plaintiffs have demonstrated convincingly that local major party leaders -- not the voters or the delegates to the judicial nominating conventions -- control who becomes a Supreme Court Justice and when," he wrote in Lopez Torres v. New York State Board of Elections, 04 CV 1129. "The highly unusual processes by which that extremely important office is filled perpetuate that control, and deprive the voters of any meaningful role. The result is an opaque, undemocratic selection procedure that violates the rights of the voters and the rights of candidates who lack the backing of the local party leaders."
For the citizens' group and eight potential judicial candidates who challenged the election process as unfair and virtually impossible without the backing of key party leaders, Gleeson's ruling was equivalent to a grand slam in the bottom of the ninth inning.
"The ruling is a victory for the voters of New York state and the judiciary," said attorney Jeremy Creelan of the Brennan Center for Justice, which represented Common Cause and the potential judicial candidates, including Margarita Lopez Torres, who is now one of two surrogate judges in Brooklyn. "After more than 100 years of domination by party leaders, voters will finally have a meaningful say in the nomination process for Supreme Court candidates."
Arthur W. Greig, who represents the state Democratic Party, said the defendants would appeal and seek a stay of the injunction from the 2nd U.S. Circuit Court of Appeals.
New York's century-old convention system is unique in the United States and only applies to Supreme Court justices. At conventions, candidates for the court are chosen by delegates.
The problem, according to the plaintiffs, is that those delegates, who represent various Assembly districts, are chosen by leaders of the state's Democratic and Republican political parties and simply do what those leaders ask. The plaintiffs argued that it is impossible to either unseat these delegates or lobby them for support.
Gleeson agreed. Without the backing of political leaders, he said, it is "virtually impossible" for a challenger candidate to field a slate of supportive delegates from various districts sufficient to win a place on an election ballot.
The judge found that an insurgent candidate for Supreme Court in Brooklyn or Staten Island would need to gather 24,000 to 36,000 signatures drawn equally from 24 Assembly districts to have a chance at the nomination.
The judge also dismissed the idea that a candidate could lobby delegates and win their support. He cited the example of Judge Lopez Torres, a potential Supreme Court candidate in 2003 who repeatedly wrote to the Kings County Democratic Committee to learn the date of the convention, the name of delegates so she could lobby them and whether she could speak at the convention.
Seven months later, the county executive, Jeffrey C. Feldman, wrote back to her, "mocking the request for a list of delegates to lobby," Gleeson wrote. Feldman said that no such list existed "anywhere in the world" and added that Lopez Torres could not speak at the convention.
"Margarita Lopez Torres demonstrated in 2003 that indisputable qualifications for the job and immense popularity among the candidate's fellow party members are neither necessary nor sufficient to get the party's nomination," Judge Gleeson wrote. "Something different is required: the imprimatur of the party leadership."
The ruling comes nearly two years after the lawsuit was filed, partially in response to judicial scandals in Brooklyn that have resulted in one judge, Victor I. Barron, admitting to bribery, and another, Gerald Garson, being indicted (he has yet to go to trial). The Brooklyn district attorney's office has since won two convictions against Clarence Norman, the former Democratic Party leader and Brooklyn assemblyman, for election law violations, and continues to say that Norman could aid the office in further investigations of judicial corruption (Norman has denied this).
PARTY LEADERS CONTROL
While defendants in the suit have denied that party leaders, specifically Norman, controlled the selection of Supreme Court candidates, Gleeson dismissed those contentions in no uncertain terms.
"The record of financial contributions by candidates for Supreme Court Justice to political groups controlled by Norman has fostered not only the (accurate) perception that he, rather than the voters or delegates, controlled the selection of the justices, but the further perception that he used the wrong criteria in making his decisions."
He added: "Based on the substantial body of evidence before me, I conclude that the plaintiffs have made a compelling showing that the New York system is designed to freeze the political status quo, in which party leaders, rather than the voters, select the Justices of the Supreme Court. By preventing competition among candidates and deterring voter participation, the system is successful in fact at achieving that goal."
Lawyers Discuss How State Should Select Judges
By JOSEPH GOLDSTEIN, Staff Reporter of the Sun, May 3, 2006
Three months after a federal judge struck down the way New York State selects its trial court judges, the city's legal community is far from a consensus about what system should be put in its place.
Several of the city's top attorneys, including the city's corporation counsel, Michael Cardozo, gathered last evening in Midtown at the city bar association building to discuss how New York should select its trial judges.
The ideas floated ranged from changing little of the existing party-controlled system, to opening the nominating process up to the general public through primary elections. Concerns expressed ranged from ensuring a diverse judiciary and protecting judges from running costly campaigns.
The topic of the quality of the judiciary received far less comment.
For many lawyers, the question of judicial selection will define the 2006 political season. The century-old debate of how to select state judges has never been settled, and has intensified in recent years following a slew of indictments against several judges in Brooklyn. A ruling in January by a federal judge that declared New York's system unconstitutional has given a new urgency to solving the issue.
In that ruling, U.S. District Judge John Gleeson found that party leaders controlled the nominating conventions that put candidates for the state's basic trial court, the state supreme court, on the November ballot, denying party outsiders a chance at the judiciary. He also found that the party-controlled system denied voters a meaningful say in the selection process.
Judge Gleeson initially ruled that the 25 vacancies on the supreme court this year should be filled by party primaries, followed by a general election. He has since stayed that order.
"In our view, this is the first real opportunity we've had in decades to revisit the issue of how judges get selected," a lawyer at the Brennan Center for Justice, Deborah Goldberg, said. "If this decision is not upheld on appeal it will probably the last opportunity for decades." She said a system of party primaries would not necessarily lead to expensive races, forcing judges to raise large sums of money.
Mr. Cardozo, the top lawyer for the city, called "practical" a system of independent qualification commissions that would endorse the three most qualified candidates to party nominating conventions. Mayor Bloomberg has endorsed such a proposal, which would require legislation from Albany. Other ideas, such as the creation of socalled "merit selection committees" that would actually pick judges, would need a constitutional amendment.
Although critics of the mayor's plan have said it would not lessen the control party leaders currently wield in selecting judges, Mr. Cardozo said that adjusting the rules governing the convention would allow more qualified candidates to stand a chance of being nominated.
"One issue is what I would call the Clarence Norman problem," Mr. Cardozo said, referring to the former Kings County Democratic leader, whom Judge Gleeson characterized as controlling judicial selection in Brooklyn. Under the current system, Mr. Cardozo said, "the fact of the matter is that the county leader has virtual dictatorial power over the quality of people coming out of the conventions."
But even in the wake of Judge Gleeson's decision, some lawyers have advocated that the present judicial nominating conventions be maintained with few changes. The current nominating conventions are responsible for much of the racial diversity currently on the bench, one supporter, Paul Wooten of the firm Paul Wooten & Associates, said.
"A convention by nature is what is called a consensus," he said. "By giving and taking, they end up getting African Americans and Latinos on the bench."
The Color of Judge Money
By Jason Boog, email@example.com
Now that the U.S. Supreme Court has sent New York Supreme Court incumbents and aspirants back to our local carnival of judicial selection, the time has come to start following the money again. And there's a lot of following to do.
In the wake of the U.S. Supreme Court’s unanimous rejection of the challenge to New York’s system for selecting judges, judicial candidates are poised to hop back on the fundraising merry-go-round.
But different jurisdictions offer different rides, at different speeds.
Last year Supreme Court candidates in the five boroughs collectively raised nearly $144,000. Yet their counterparts in the major suburban districts stockpiled almost $754,000.
These fundraising numbers might give the mistaken impression that more judges are running in the suburban races. In reality, during the 2007 election season, 12 Supreme Court spots were open in the five boroughs, while only six seats were available in the suburban districts.
Despite having double the amount of available seats, most judicial candidates in New York City barely worry about fundraising. Conversely, the suburban contests are driven by an often manic pursuit of dollars.
DEMOGRAPHY IS DESTINY
The wildly disparate sums reveal a pronounced demographic shift affecting some judicial campaigns.
Last year’s biggest judicial fundraiser in the greater metropolitan region was not found in Manhattan or Brooklyn. The top money magnet was Justice Francis A. Nicolai, a former Westchester County Court Judge who is now Administrative Judge for the Ninth District.
Nicolai raised a whopping $161,000 for a seemingly doomed candidacy. During the course of his tumultuous campaign, the judge ran with only the Democratic endorsement — unsuccessfully taking his fight for minor party endorsements to court. Click here for the Judicial Reports coverage.
Historically, candidates have depended on small party endorsements to bring crucial extra votes in close races.
And unlike many jurisdictions dominated by one of the major parties, greater competition in both the Ninth and Tenth Judicial Districts means that every last vote counts.
In the Ninth, candidates seek votes across a vast swath that includes Dutchess, Orange, Putnam, Rockland, and Westchester Counties. Judges in the Tenth must cover both Suffolk and Nassau counties.
While the Democratic Party has maintained a powerful hold over New York City, suburban voter registrations have begun tilting more Democratic in recent years.
In the Ninth, the Democrats went from some 445,000 registered voters in 2002 to more than 490,000 in 2007, while the Republicans went from slightly under 366,000 to slightly more than 367,000. The Independence Party gained 12,900 voters in that same period.
The Tenth shifted more dramatically since 2002. The Democratic Party went from just over 559,000 voters to just over 600,000 voters in 2007, and the Republicans lost roughly 31,000 voters from its total of approximately 705,000. The Independence Party gained 16,000 voters.
Click here to see a LexMetrics analysis of the shift.
Nicolai’s massive fundraising effort paid off in the Ninth. In the general election, he and two other Democrats beat the nearest Republican-endorsed contender, County Court Judge and Acting Supreme Court Justice Rory J. Bellantoni, by more than 5,000 votes. (In the contest, eight candidates vied for three seats.)
Bellantoni’s fundraising efforts weren’t quite as successful — he raised about $51,000 for his losing bid, ranking him seventh in the 2007 top fundraiser list. Justice Bellantoni has continued serving as an acting justice, and his County Court seat expires in 2013.
DEMOGRAPHICS IS ECONOMICS
Arnold Linhardt, a consultant from White Plains-based Strategic Services, has helped a few Democratic judges in recent years. He said that demographic shifts have changed the fundraising numbers.
“Has it got more expensive? I would say yes, at least on the Democratic side,” said Linhardt. “It was needed to get the message out, let people know who these candidates are. . . . On the flip side, I think Republicans are finding it harder to raise money.”
The consultant attributed the shift to a flight to the suburbs by New York City Democrats escaping high rents.
He also speculated that the shift signals the waning influence of the smaller parties. “Based on Frank Nicolai’s win, you might see candidates saying, ‘I don’t want to be held up by minor parties’, ” he concluded.
If so, it was an unintended consequence. Nicolai fought hard to overturn the small party endorsement processes after he failed to gain their support, but his ultimate victory might indicate that he needn’t have bothered.
The Board of Elections general election figures didn't illustrate that conclusion just yet.
In 2003 (a comparable ‘off-year’ without major Presidential or Legislative races to bring voters to the polls), the Independence Party delivered more than 11,000 votes countywide to cross-endorsed candidates who won the judicial race. In the 2007 race, by contrast, that party delivered 13,000 votes to Judge Bellantoni — their cross-endorsed candidate.
Frank MacKay, the national chairman of the Independence Party of America, strongly disagreed that the minor party vote was fading. “[The 2007 election] was the exception, not the rule by any means,” he explained in an interview, drawing on his previous experience as chairman of the Suffolk County Independence Party.
“Certainly in every close race in Suffolk and Nassau a so-called minor party can claim the margin of victory,” he added. “There’s nothing minor about the effect they have on judicial elections. For the most part, no one is winning these elections without the help from the Independence, Conservative, or Working Family Parties.”
TOUGH TIMES IN THE TENTH
The second biggest fundraiser of the year came from the Tenth, but his efforts didn’t pay the same dividend as Judge Nicolai’s.
Robert W. Schmidt, a Republican Associate Justice in the Appellate Division, Second Department, raised more than $110,000 for his hotly contested Supreme Court race. But he ended up losing in a Democratic sweep — with his closest opponent beating him by more than 26,000 votes.
Anthony Manetta has been a political consultant in Suffolk and Nassau Counties since 2001. He founded Roosevelt Strategy group, and has worked on a number of judicial races on Long Island.
He said candidates face an entirely new financial reality.
“If you’re going to run for Supreme Court countywide [in the Tenth], you need to come in with at the minimum $75,000,” he said. “I would recommend $125,000. The price tag has evolved. Over time things get more expensive — the costs of television ads have increased dramatically.”
He also noted that judges like Schmidt might have to dip into their own pockets next time.
“More and more what you’re seeing, especially with judicial candidates, is that many have to turn to investing in their own campaigns. You didn’t used to see that at all,” he concluded.
NEW YORK CITY IS DIFFERENT
Eight of the top 10 fundraisers of 2007 came from the Ninth and Tenth, a dynamic that has been reflected since the State Board of Elections began archiving campaign finance reports in 1999. Democratic Party dominance typically makes such dollar-dialing unnecessary in the five boroughs, and the U.S. Supreme Court’s rejection of electoral reformers’ case in Lopez Torres vs. NYS Board of Elections means that won’t change anytime soon.
The top fundraiser from the five boroughs was Robert J. Miller. The judge raised $35,000 in his bid to secure the Democratic nomination and general election for Supreme Court.
Miller secured the coveted Democratic nomination, and a cross-endorsement from the Republican and Conservative Parties. This made him the only candidate cross-endorsed by all three parties in that race where five candidates vied for three spots.
Along with the two other candidates with the Democratic endorsement, Miller’s win was virtually assured. He beat his nearest Conservative Party opponent (who lacked the Democratic and Republican endorsements) by more than 60,000 votes.
Most dramatically, only nine Supreme Court candidates from New York City even made the list of the state’s top fundraisers. The remaining spots were all secured by suburban judges forced to raise bigger pots for their elections.
Indeed, the first candidate from the five boroughs to crack the post-1999 list comes in at number 35 — Acting Supreme Court Justice Judith Gische, who raised $70,000 in multiple bids for the Supreme Court. (Most recently, she lost a judicial convention bid in 2007.)
HIGHEST JUDICIAL FUNDRAISER EVER
The prize of biggest judicial candidate fundraiser since 1999 goes to Republican Janet DiFiore, who raised more than $300,000 for her 2002 Supreme Court bid in the Ninth. She came in first place out of four winners in that race with a cross-endorsement from the Independence and Conservative Parties.
That 2002 election victory was the pinnacle of Republican power in the Ninth. Among all five counties, she collected 216,600 Republican votes that year. In contrast, no Republican won last year in that same district.
DiFiore resigned her judicial post in 2005, choosing to run for Westchester District Attorney on the Republican ticket. She narrowly won that race against the Democratic candidate, earning a nail-biting 51 percent of the vote.
Perhaps in a nod to the tectonic shift of voter demographics, DiFiore announced last year that she was changing parties to become a Democrat.
Consultant Linhardt thought that these fundraising aftershocks would lessen in a few years, particularly in the wake of Lopez Torres.
“If the U.S. Supreme Court had upheld the lower court, then you would have seen a spike in expenditures,” he said. “Since the system remains the way it is, I think we will see a leveling out in two or three years.”
The second-highest fundraiser was not so lucky. Justice Thomas A. Adams, an incumbent Associate Justice of the Appellate Division, Second Department, raised more than $278,600 for his 2006 reelection bid.
The Republican judge had received coveted cross-endorsements from the Independence and Conservative Parties, but he still lost the four-way race — losing to his closest Democratic opponent by more than 20,000 votes.
As a consultant, Manetta is frank with his clients about this hostile environment for incumbents. “The universe is so large, it’s a very expensive campaign to run. They are more competitive than ever before,” he said. “Ten years ago, all a candidate needed was the Republican line. Now the Democratic line is very competitive.”
Henry Stern wrote:
FEDERAL JUDGE GLEESON UPSETS SYSTEM OF JUDICIAL CONVENTIONS THROUGH WHICH PARTY BOSSES MADE SUPREME COURT NOMINATIONS WITHOUT PRIMARY ELECTIONS.
CAREFULLY CONTROLLED CONVENTIONS ARE ALLEGED TO HAVE RESULTED IN THE SALE OF JUDGESHIPS TO SOME WHO MAY HAVE TAKEN BRIBES TO RECOUP THE COST OF BUYING ROBES.
The most important political event in New York in 2006 was a decision handed down last Friday by Federal Judge John Gleeson of the Eastern District of New York, which ruled unconstitutional the judicial conventions through which party bosses have chosen State Supreme Court Justices for a century.
In a thoroughly documented decision, which you can link to here, Judge Gleeson ruled that the convention system, in which judges are hand-picked by delegates chosen for that purpose, usually officers of local political clubs, deprives the public of its legal right to participate in the selection of judges. Under current rules, all judges in New York State EXCEPT Supreme Court Justices are either appointed by elected officials or chosen in open primary elections.
The convention system for Supremes has resulted in the evils of judges buying their judicial offices from county bosses. The grateful beneficiaries of these nominations are sometimes expected to assume obligations to the men who put them there, which may influence their decisions in cases directly involving the leader or his clients, or in cases where litigants have appealed to the county leader to intervene, in the style of The Godfather, who assisted his people in the settlement of disputes. Judges have also tried to recover the money they paid for their robes by extorting sums from litigants that appear before them, in the manner of 19th-century police captains in the Tenderloin and similar districts. This was the case of Judge Victor Barron.
The reality of the current judicial nominating process is that the delegates 'elected' by the voters, sometimes a dozen or so for each assembly district (plus another dozen alternates), are in fact persons unknown to the great majority of voters, who ritually approve the nominees of the county political organization. If the election is not publicly contested, the names of the nominees do not even appear on the ballot. The judicial candidates of the Democratic Party, in boroughs where that nomination is tantamount to election, are in fact chosen by party bosses, sometimes in exchange for substantial sums of money, theoretically intended for campaign expenses, but often finding their way into the political leader's pockets, or to favored business firms for minimal and totally unnecessary goods and services. The businesses (pollsters, printers and publicists) launder the boodle before paying off those in power who had sent the judicial candidates to them to be fleeced.
FOR STUDENTS OF GOVERNMENT, THE HISTORY OF INDIRECT ELECTIONS IN THE UNITED STATES
Historically, the practice of indirect election was not confined to Supreme Court Justices. BTW, in New York State the "Supreme Court" is in fact a trial court. There are two levels of the judiciary above it, the Appellate Division, where the judges are selected by the governor from among supreme court judges, and the Court of Appeals, which is the pinnacle of the state judiciary. The Court of Appeals was for many years, directly elected by the people, but abuses in campaign funding and a high degree of partisanship caused the method to be changed about twenty years ago. Now the judges are appointed by the governor from a list presented to him by judicial screening panels, which solicit nominations and then screen candidates. This process has to some extent minimized the role of politics and money in judicial selection.
The President of the United States himself is elected indirectly, with the Electoral College making the final decision. Over time, the electors have lost their discretion, and now simply mirror the votes of their states (except for the rare 'faithless elector'). Nonetheless, a President can be elected who has received fewer popular votes than his rival: Hayes v. Tilden in 1876, said to be the stolen election, Benjamin Harrison over Cleveland in 1888, and Bush over Gore in 2000.
United States Senators were elected by State Legislators until April 8, 1913, when the Seventeenth Amendment to the Constitution was ratified by the 36th state, Connecticut, Louisiana took until June 11, 1914 to become the superfluous 37th state (out of 48). Left-leaning Massachusetts was the first to ratify (on May 22, 1912, just nine days after it was proposed by Congress). New York State was fourth, acting on January 15, 1913. Senators have now been popularly elected for 92 years, still less than half the time since the founding of the Republic.
THE BACKGROUND: HOW THIS CASE CAME TO BE BROUGHT
Ironically, it was the actions of ex-Assemblyman and Brooklyn Democratic leader Clarence Norman, until his felony conviction in fall 2005, and Assemblyman Vito Lopez, his successor, that began the chain of circumstances that led to this decision. When Margarita Lopez-Torres was elected to a county-wide Civil Court in Brooklyn in 1993 on the recommendation of Vito Lopez, she rejected every job applicant sent to her by the county organization, including Mr. Lopez' daughter who sought employment as a law secretary. The payback for this defiance was the county's refusal to designate her for re-election when her term expired in 2003. She ran anyway, winning re-nomination in a sharply contested Democratic primary. The next year, she sought the county designation for Supreme Court Justice, which was decided by a judicial convention, not a primary. Predictably, the county organization turned her down although she was among the longest serving judges on the civil court.
In the spring of 2005 the position of Surrogate suddenly became vacant when Justice Michael Feinberg was removed for corruption by the Court of Appeals, upholding the recommendation of the Commission on Judicial Conduct. You can find details of l'affaire Feinberg on our website; just google his name. The vacancy thus created came in time to be filled by a primary. Three candidates competed, and Judge Torres won by an extremely narrow margin, some 200 votes.
At this time, the powers that be in Brooklyn, fearing the loss of the lucrative judgeship, which has the power to appoint receivers and grant other judicial patronage, communed with Governor Pataki and they agreed to create a second position of Surrogate Judge in Kings County, plus a Supreme Court seat in Queens for its strong leader, Tom Manton. In exchange for this courtesy, a number of upstate judgeships were created for Republicans and some Court of Claims positions for Governor Pataki to appoint. The timing of the legislation was exquisite, the new judgeship came into existence too late to file for the primary, but in time for the general election, so the new Kings County surrogate would be chosen by Democratic party bosses, without the need for a primary election.
Assemblyman Frank Seddio was chosen as the new surrogate, after Assemblyman Joseph Lentol declined the county leader's offer of the nomination. Note that both candidates were members of the State Assembly, where the support of Speaker Sheldon Silver had been essential to creating the new positions. There was something for everyone, except the voters.
This matter is by no means settled. An appeal to the United States Court of Appeals for the Second Circuit is inevitable, and beyond that the losing party may seek review in the Supreme Court of the United States, a far cry from the Supreme Court of the State of New York, the trial court which is the subject of the controversy.
THE DECISION GIVES HOPE FOR FURTHER JUDICIAL REFORM, MONEY-DOMINATED PRIMARIES AREN'T THAT GOOD EITHER, PARTICULARLY WHEN SITTING JUSTICES SEEK RE-ELECTION.
Judge Gleeson's decision is in the finest tradition of responsible judicial activism. He found an undemocratic situation in which the people were left powerless to elect judges. The concentration of power in one man or a tiny group spawned other evils. Just as it is dictatorships that start wars rather than democracies, it is political dictators who plunder and twist the mechanisms of justice to serve their own ends. And for every crime in the courts that is exposed and punished, think of how many wrongs are done of which we are unaware. Bribery is a crime of consent and collusion, and it is rare for a victim of extortion to make a complaint.
The underlying principle here is that if a system is too unfair and unbalanced, giving power to one at the expense of everyone else, the courts will intervene. There is wide latitude allowed in methods of election and districting. Even the DeLay design for Texas, adding seven Republican seats and breaking up Democratic districts, passed judicial muster. But Judge Anthony Kennedy did warn, on that occasion, that it was possible for some district lines to be so odious and unfair that they would not meet the test of constitutionality. Where the line will be drawn depends on who draws it.
The State Legislature now has the opportunity to reform the system to comply with Constitutional requirements of access and fairness. Our prediction is that they will be unable to do so, they can't even agree on buying voting machines. The matter will inevitably return to the courts. There is a particular problem here with judges seeking re-election. If we want them out of politics, we cannot require them to raise substantial sums for advertising in order to remain on the bench.
If there is an appeal to the Supreme Court, we hope that the two new Justices, John G. Roberts and Samuel A. Alito, will have genuinely open minds when they consider these matters. This is not an economic issue, nor an abortion or gay rights case. The issue here is what level of unfairness must be reached to raise a Constitutional issue. We believe that deprivation of the right to vote is eminently unfair. The public has a fundamental right to elect judges, or to delegate that right to an elected official whom they have elected.
Beset by murdered children and transit strikes, it is comforting to reflect that something has happened which, if followed up, will lead to a more honest judiciary, which is required if justice is to be done for all people, rich or poor, wired to the political machines, or independent of them.
One cannot write about this case without thanking the Brennan Center for Justice, which brought the lawsuit. While we do not necessarily agree with every case they bring (even fighters for justice may have issues of judgment), this case was in the best tradition of the quest for honesty, decency and fairness. We know Justice Brennan would be proud.
Liberal Party of New York
The Undemocratic Vote-For-Our-Candidate-or-Else Machine in New York Just Keeps Rolling Along
For more information about the Judicial Convention, efforts to change it and a record of judicial corruption over the past 5 years, go to Jeff Feldman is Back Helping Pick Brooklyn Supreme Court Judges