Under the headline, “Bipartisan deals again guarantee win for Supreme Court candidates,” Buffalo News political reporter, Bob McCarthy, reports in this morning’s newspaper how the voters in Western New York will once again have no choice in determining the selection of State Supreme Court justices. Leaders of the Republican, Democratic and Conservative parties have “cross-endorsed” four candidates for four openings. As McCarthy reports, “[T]he bipartisan backing allows all four to run unopposed and guarantees their election in November.”
The U.S. Supreme Court concluded thirteen years ago that New York’s process for determining the options available to its electorate when voting on State Supreme Court jurists does not violate the First Amendment. Perhaps the best known expression of disdain for New York’s judicial selection process came from the pen of Associate Justice Stephen Breyer. While concurring with Justice Scalia’s 2008 opinion in NYS Bd. of Elections v. Lopez Torres – that the Empire State’s system is not violative of 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.’”
Stupid and unwise seems accurate to me. But my criticism of the selection process for these important judicial positions is not aimed at the four anointed candidates, so I will not name them here. I will, however, point out that each has been guaranteed a fourteen-year post with a $210,900 annual salary.
Rather than reinvent the wheel in setting forth my critique of New York State’s flawed system of selecting Supreme Court justices (who are the trial court judges, despite their lofty title), I will direct you to my May 5, 2016 posting on this topic and beyond: “NY’s System of Selecting Judges Isn’t the Only Obstacle to Assuring an Ethical Judiciary.” That piece includes the following reflection on
With All Due Respect,