Super Lawyers
William C. Altreuter
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Sunday, November 16, 2008

Most media descriptions of New York judicial selection refer to our process as a hybred, because some of our judges are elected and some are appointed. This is true enough, as fear as it goes, but it is not a very accurate description of how the process really works. First off, we have a cockamamie nomination process for the justices that sit on our highest trial court-- the Supreme Court. We know that this process is constitutional, because the United States Supreme Court has said so. We also know that this process is "stupid"; that it does not "produce both the perception and the reality of a system committed to the highest ideals of the law";and that it "leaves judicial selection to voters uninformed about judicial qualifications and places a high premium upon the ability to raise money," because the Supreme Court has also said those things.

We also have an intermediate appellate court, the Appellate Division of the Supreme Court. This is the court where most appeals are ultimately decided. The selection process for this group actually is a hybrid. Applicants are screened by a merit selection panel, which presents a list of five candidates to the Governor, who makes his nomination. The dogs in our state senate vote to approve or disapprove the nominee. The catch is that a nominee to the Appellate Division must be an elected justice of the Supreme Court. Can't be an otherwise qualified academic or practitioner, can't be a Court of Claims judge, or a judge of a lower court sitting by designation; can't be a justice appointed to the Supreme Court by the Governor (and approved by the dogs of the Senate) to file a vacancy. Has to be an elected justice.

The only pure merit selection bench in the Empire State is our highest court, the Court of Appeals. The system works really well there-- we have a very able Court of Appeals, and this has been true for as long as I have been in practice.

The judicial system works because people believe it is fair, but three in four Americans believe campaign cash affects courtroom decisions. Sandra Day O'Connor favors merit selection-- why can't we fix this?

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