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Background Briefing on Lopez Torres

October 3, 2007

Background Briefing on “Lopez Torres”
Due to be heard by the US Supreme Court on October 3, 2007

Although the New York State constitution says that judges should be chosen by the people, the current nomination process is entirely controlled by party bosses. The Brennan Center for Justice has challenged the legality of this last vestige of Tammany Hall as an unconstitutional process that deprives voters of their right to determine how our government is run. We believe the selection process violates the First Amendment and is anti-democratic. Changing this system could help revive the spirit of democracy that for too long has suffered in Boss Tweed’s Albany.

Lopez Torres v NY State Board of Elections is scheduled for argument before the US Supreme Court on Wednesday, October 3, 2007. The case will have major implications for New York and other states across the country.

The entire history of the case can be found here. The current status is in January 2006, U.S. District Court Judge John Gleeson entered a preliminary injunction against New York’s the system. In August, 2006 a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit unanimously affirmed Judge Gleeson’s ruling. In February 2007, the U.S. Supreme Court granted review in the case.
The Brennan Center’s Argument

In July 2007, the Brennan Center filed its brief with the Supreme Court urging the Court to tear down poltical boss control of New York State government. The brief argued that “New York’s state-imposed nominating process creates a locked gate, to which those in control of the party hold the only key.” In urging affirmance of the Second Circuit decision, the Brennan Center’s brief assails a system that “vests de facto judicial appointive power in unaccountable party bosses, thereby creating a fertile source for corruption, decreasing confidence in its courts, impeding the search for excellence, and failing to achieve a genuinely representative judiciary.”

The Brennan Center was supported by a broad and ideologically diverse cross-section of legal, political, academic, and reform organizations and individuals from across the country who filed amicus briefs offering unique perspectives on the operation of New York’s scheme, and supporting affirmance of the Second Circuit’s decision. Additionally, the Cato Institute, The Reason Foundation, and the Center for Competitive Politics also filed an amicus brief (in support of neither party) supporting the Second Circuit’s conclusion that New York’s convention scheme is unconstitutional.

Highlights from the Amicus Brief filings:

* Former NYC Mayor Ed Koch:
“New York’s convention system for electing Supreme Court Justices has gone largely unchanged for the forty-plus years that I have been familiar with it. The undemocratic boss run system that I observed in the 1960's appears to operate no differently today than it did back then..Justices of the Supreme Court in New York are not elected, even though their names are on the ballot. They are selected.”

* Brooklyn District Attorney Charles J. Hynes:
“I am persuaded, from my long experience as a prosecutor, voter, citizen, and lawyer that.the problems of corruption in Brooklyn involving Supreme Court judgeships are not attributable to a single corrupt party boss. Rather, as the public record demonstrates, corruption in judicial politics has a long history paralleling the long history of the judicial district convention system..corruption brought about by the architecture of the Supreme Court nomination system does not end once the judge is tapped by party leaders to serve on the Supreme Court, or when the judge is elected. It often continues, in the form of corruption in the administration of justice.”

* Former US Attorney & NY State Senator John Dunne:
“Mr. Dunne’s own experience is illustrative. Despite his record of dedication to the Republican Party and his demonstrated expertise in the area of judicial elections, he has never been put forward as a delegate candidate, even though he had asked repeatedly for the opportunity. Instead, he has been passed over by local bosses in favor of slates of delegates who can be relied upon to rubber stamp the choices of the 'leadership.' These slating decisions are unreviewable. If a State Senator with 24 years’ service to his party can be shut out of the nomination process entirely, there is little hope for rank-and-file party members who do not hold elected office.”

* Washington Legal Foundation:

“If New York were to adopt a law declaring that Supreme Court Justices are to be popularly elected, but only the leaders of the most powerful political party within each judicial district are allowed to vote in that election, the law would surely amount to an unconstitutional abridgement of voting rights…Based on the detailed (and uncontested) factual findings of the district court, the New York election system has exactly the same effect on voting rights.”

* Thomas Mann/Brookings Institute, Norman Ornstein (American Enterprise Institute) and others:

“Although New York’s judicial selection scheme genuflects at the altar of democracy, it prays to a very different god: patronage…By effectively lodging the power to control the nomination of state Supreme Court Justices in local political party leaders, New York’s mandated system makes state Supreme Court Justices-and many below them on the judicial ladder-beholden to local party officials. The judges, their law clerks, and other judicial employees become mere patronage spoils..As in the former Soviet Union, where voters had a 'choice’ of a single candidate picked by the ruling Community Party.voters in New York’s Supreme Court primary enjoy all of democracy’s ceremonies without any of its substance.”