Outside Counsel

 The Buffalo News ran an article the other day about the system New York uses to select judges for our highest court. The piece was mildly critical: the implication was that the members of the Commission on Judicial Appointments are lawyers who appear before the Court, and that the process isn't particularly transparent. Outside Counsel has frequently posted about judicial selection, so I quickly wrote 1,500 words for a My View column- then cut it to 645 words when I realized that I'd written something twice as long as the News would accept. I don't know if the paper will run the piece, but here it is:

The proper method for selecting judges has been wrestled with by scholars, lawyers and the drafters of the Constitution since at least the founding of the Republic. A recent article in the Buffalo News by Chris Bragg (“The insular process of picking New York’s top judges”, May 22, 2023) cast a light on the way our Court of Appeals judges are appointed, which is valuable. Regrettably the article implied that the merit selection process is tainted because the members of the State Commission on Judicial Appointments, which makes the list of recommendations from which the governor selects nominees is made up of attorneys who appear before our highest court. This is unfair. There is no perfect system for judicial selection, but this process has an established record of selecting candidates that is non-partisan, merit based, and effective.

            It is true that the lawyers who are appointed to this panel may argue before the Court; it is also true that there is probably no better qualification for evaluating a judicial candidate than to be a lawyer who understands what the Court does and how it does it.

            The complaint in the News’ article is apparently that the system lacks transparency, but that is not entirely true, accurate, or fair. The list of candidates that the Commission sends to the governor is public. Sometimes multiple vacancies occur, and sometimes there are serial vacancies, and not all prospective nominees apply for every opening, so we can’t read anything into the fact that sometimes someone doesn’t show up on a particular list. The qualifications of the candidates that make the lists are obvious to anyone who follows this process.

            For the most part- and particularly at the appellate level- a judge's job is to make rulings on the law, rather than to respond to popular opinion about what a ruling should be. You want someone to respond to popular opinion? That's what the other two branches of the government are all about. Judges aren't supposed to make the popular decisions-- they are supposed to make the correct decisions, based on the law, regardless of whether the decisions they make will be popular. The best judges should be knowledgeable about the law- that’s the baseline. They should also bring a sense of fairness and proportionality to their reasoning as well as a finely tuned temperament and intellectual curiosity.           It should also be mentioned that the Commission’s merit selection process is only part of how Court of Appeals judges are appointed. After the Commission promulgates its list the governor reviews it, and the Judiciary Committee conducts a hearing, and the State Senate votes. As we have just witnessed these are not pro forma steps. The fact that a prospective nominee was just rejected tells us that everyone takes their role seriously, and the fact that this sort of rejection is rare tells us that the Commission has historically done its job well.

Of course judicial selection is political. The question is how do we best insulate the judicial selection process from the political process? At the Philadelphia Constitutional Convention in 1787 Benjamin Franklin proposed that lawyers ought to decide who should sit on the federal courts. After all, Franklin quipped, the attorneys would select "the ablest of the profession in order to get rid of him, and share his practice among themselves." Although Dr. Franklin’s rational for this proposal was tongue-in-cheek, his system pretty closely resembles the merit selection process of the State Commission on Judicial Appointments. Moreover, it works. At a moment when the United States Supreme Court is polling at historically low confidence numbers the New York Court of Appeals is highly respected by the attorneys who appear before it, and by the courts of other states – including federal circuit courts of appeal- which routinely cite New York authority in their opinions. #30

// posted by Bill @ 10:28 AM