I walked to my polling station early this morning proud to exercise my right and responsibility to vote. A number of specific races were of special interest to me, as was the referendum on whether to hold a constitutional convention.
I departed the polling place angry and disheartened, having left half my ballot empty.
I REFUSE TO CAST A MEANINGLESS VOTE!!! And, sadly, that is what selecting judicial candidates was today: meaningless. We, the voters, were offered no selection. The political parties chose the candidates for each and every judicial position on the ballot, and the number of candidates listed NEVER exceeded the number of open positions.
For example, choosing two candidates for State Supreme Court when only two individuals are listed (no matter how good a choice they may be), is no choice at all. Similarly, selecting our next Surrogate Judge and having only one name to choose from is no option.
I wrote about the sorry nature of New York’s system of choosing judicial candidates in a May 11, 2016 post. Here’s what I said at that time:
New York’s unique system of selecting candidates for the general trial level judges – Supreme Court Justices – is truly troubling.
Ninety-five years ago, New York ceased using a primary election process for selecting candidates for Supreme Court Justices, and replaced it with party conventions in each of the state’s thirteen judicial districts. The political parties select the candidates for Supreme Court Justice (who are elected to 14-year terms) at conventions composed of delegates elected by party members.
This unconventional method for selecting the state’s most powerful trial judges – the men and women making decisions that directly impact the lives of New York’s citizens, corporations, and government agencies – is universally scorned. A recent editorial in the Buffalo News, under the headline “Corrupt system of selecting judges creates the potential for criminal activity,” called it a “wretched corruption-inducing system.” According to Western New York’s largest newspaper, “[I]n New York, judicial candidates practically have to prostrate themselves before party leaders and influential players in order to win a place on the bench.”
In 2003, New York City Mayor Michael R. Bloomberg was a bit more diplomatic, but equally biting. Suggesting that a lack of rigorous merit-based selection standards endangered the public’s trust and respect for the courts, then-Mayor Bloomberg correctly noted that the existing convention system allowed party leaders to virtually handpick the winning judicial candidates. In his words, “There is nothing wrong with being politically active, but knowing where the local clubhouse is should not be a prerequisite for becoming a judge.” [See Bloomberg’s comments at pages “3” and “4” of a NYC Bar report.]
Perhaps the best known expression of disdain for New York’s judicial selection process came in 2008 from the pen of the Hon. Stephen Breyer, Associate Justice of the United States Supreme Court. While concurring with Justice Scalia’s opinion of the court in NYS Bd. of Elections v. Lopez Torres – which held that New York’s system for choosing party nominees for State Supreme Court does not violate the First Amendment – Justice Stevens, joined by Justice Souter, made the following observation:
“While I join Justice SCALIA’s cogent resolution of the constitutional issues raised by this case, I think it appropriate to emphasize the distinction between constitutionality and wise policy. Our holding with respect to the former should not be misread as endorsement of the electoral system under review, or disagreement with the findings of the District Court that describe glaring deficiencies in that system and even lend support to the broader proposition that the very practice of electing judges is unwise. But as I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: ‘The Constitution does not prohibit legislatures from enacting stupid laws.’”
Having spent forty years appearing before dozens of New York State Supreme Court Justices – on behalf of clients ranging from state prisoners, average citizens concerned about land use and environmental matters, and, on occasion, municipalities – I can state unequivocally that New York’s flawed method for selecting judges has not prevented some remarkably intelligent and ethical men and women from ascending to the bench. On the other hand, my clients and I have been subjected to some questionable conduct and decision-making over the years at the hands of Supreme Court Justices who are the product of this “wretched, corruption-inducing system.” [See, for example, two past posts at this blog: https://withallduerespectblog.com/2014/01/13/and-on-the-410th-day-the-abuse-of-discretion-ended/ and https://withallduerespectblog.com/2015/04/09/justice-and-even-the-appearance-of-justice-eludes-peace-bridge-neighbors/.]
But New York’s judicial selection process is not the only problem for any New Yorker who, in the words of the Buffalo News, “cares about an upright judiciary and honest government.” From my perspective, the self-regulation and self-policing of the judiciary has contributed to an environment where less-than-ethical judges can get away with behavior that erodes the public’s trust and confidence in the courts.
[If this topic interests you, here’s a link to the remainder of my May 2016 post: https://withallduerespectblog.com/2016/05/11/nys-system-of-selecting-judges-isnt-the-only-obstacle-to-assuring-an-ethical-judiciary/.]
With All Due Respect,