Outside Counsel

The Second Circuit has upheld Judge Gleason's decisions striking down New York's convention system for selecting Supreme Court candidates. While this is a fine thing, it doesn't really get to the heart of the problem: how should we select judges? Right now, after this election, we will have primaries-- unless the Legislature devises a system that will fit the criteria outlined in the Court's decision.

The present process involves a primary in which delegates to the judicial nominating convention are elected. Delegates who "collect" sufficient petition signatures are "deemed" elected, and don't appear on the ballot. The nominating conventions pick the judicial candidates for their respective parties. You see where this is going, right? Basically the only way a candidate can get on the ballot is if the candidate has the support of the head of the party, because only the party has the apparatus to navigate the delegates primary process. The Court essentially held that the process unfairly burdens the First Amendment right of association, which is certainly true enough, but which begs the question.

There is nothing about the role of judge that suggests that a democratic selection process is well-suited to the task of locating individuals who will be capable and fair. In many ways judges serve a function that is anti-democratic. Their role is to be impartial, and to rule on the law, not to decide matters based on the popularity of a particular party or position.

The people who use the courts are, I think, best equipped to say what qualities make the best judges. I would propose to you, Outside Counsel readers, that if you asked a room full of New York State lawyers what buildings you should go to to find the best judges that they would all agree that the Court of Appeals building in Albany would be one, and the local federal district court would be another. We'd all agree that the building from whence the Torres decision emanated-- the Second Circuit Court of Appeals in Foley Square has so many excellent judges that it is sort of like the 1927 Yankees of the judiciary. It is notable, I think, that none of the judges in those buildings are elected. The process by which federal judges and Court of Appeals judges are annointed is a merit selection system, and I fail to see why New York State Supreme Court justices shouldn't be selected by a similar method. Merit selection is, of course, political-- but look at the results we get when the political process is taken out of the hands of political party chairmen, and given instead to elected officials who are accountable to the electorate.

The only flaw I see in my proposal to have state Supreme Court judges appointed by a process like that used for Court of Appeals appointments is the utter corruption and lack of transparency in the New York State Legislature, and I will concede that this may be a fatal deficiency. Nevertheless, merely shrugging at the situation fixes nothing. We are entitled to the best judges, and that means that we should use a system geared to appointing the best judges. The process we use now-- or the primary system that the Court of Appeals will have us using next time-- is not the way to go about this.