November 29, 2004
Are Judicial Nominations Too Political?
Public Forum at the New York County Lawyers' Association
Home of Law, sponsored by the NYCLA Task Force on Judicial Selection
In theory, trial judges in New York State are elected by the voters.
But in practice, those who want to be judges are at the mercy of
unelected political party bosses and their back room dealings, NYU
Law professor Burt Neuborne told an audience of about 100 judges,
law clerks and attorneys Monday night at the New York County Lawyers
Association. "It is not a defensible process from any political
science standpoint," Neuborne said.
In New York, unlike any other state, major party candidates for
judge are nominated at a judicial convention--as opposed to running
in a primary or nonpartisan general election. In other words, a
hopeful judge's only chance of appearing on the ballot as a Democrat
or a Republican is to be chosen at that party's judicial convention.
What's more, say critics of the current system, the results of those
conventions are often decided by just a handful of party leaders
in the state.
Critics charge the system is problematic because, in New York,
virtually no judges win at the polls unless they are on a party's
ticket--usually Democratic in New York City and Republican in the
rest of the state. Therefore, argued Neuborne, judicial hopefuls
don't have a realistic chance of taking the bench without securing
their party's nomination. "Once the nomination occurs, the
election is nothing more than a coronation," Neuborne said.
"Selecting by a majority process is a good idea," he said,
but the democratic system only works if it's a "true expression
of majority will."
Neuborne was joined on the panel by former New York City Councilman
Stanley Michels; Ernst Rosenberger, former Justice of the Appellate
Division, First Department; and Michael Sweeney, an adjunct professor
at Fordham University School of Law and legal counsel to the Commission
to Promote Public Confidence in Judicial Elections--a group created
by New York Chief Judge Judith Kaye in 2003. The event was moderated
by Columbia University Law School Vice Dean and Professor Richard
Briffault.
Neuborne also serves as the legal director at NYU's Brennan Center
for Justice, which recently brought a federal lawsuit challenging
New York's judicial nomination system as unconstitutional. The lead
plaintiff, Margarita Lopez Torres, was elected to Civil Court in
Brooklyn in 1992, but was not able to persuade the Democratic Party
to nominate her for Brooklyn's Supreme Court--the highest trial
court in the state. Her supporters publicly complained that the
Democratic Party in Brooklyn blackballed her for declining to hire
people put forward by party leaders.
The judicial nomination process has received a great deal of attention
due to recent scandals involving allegations of bribery and cronyism
in Brooklyn. One former Brooklyn judge pleaded guilty in 2002 to
taking a bribe and was later sentenced to three to nine years in
prison; another was indicted last year for allegedly taking bribes
in divorce cases; a third lost his job for mishandling an escrow
account and for wrongfully subletting an apartment, while a fourth
came under scrutiny for how he managed an elderly relative's savings.
Last year, New York's head judge, Judith Kaye, put together a panel,
the Feerick Commission--headed by John Feerick, the respected former
Dean of Fordham Law School--to promote confidence in the judiciary.
Sweeney, counsel to the commission, told the audience on Monday
night that the organization's research revealed that many were skeptical
about whether the judiciary was truly impartial. One reason was
because of the, "perception that political leaders control
the election process," Sweeney said.
Among the reforms suggested by the commission is a requirement
that all judicial candidates participate in independent screening
panels--though the commission did not recommend that they be rated
as qualified to be placed on the ballot. Stanley Michels, the former
City Council member, said he supported screening panels. He held
up Manhattan as an example, saying that a judicial screening panel
created in 1976 has resulted in "a very diverse bench and very
good bench."
But Rosenberger, a retired judge, defended the current system on
the theory that, for the most part, it insulates sitting judges
from having to defend their seats. "Campaigning for a sitting
judge is a very, very difficult thing, not only because the judge
is working full time, but also because a judge who is sitting has
far more restraints on activities than does a lawyer who is not
a sitting judge," he said. "When my first term was up
and the time came for me to seek re-election, I was told by many
people: 'Don't be concerned about it, because you will be renominated.'"
Rosenberger said the reassurance freed him from the political pressure
of campaigning to hold onto his seat.
By Wendy Davis
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