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Who Really Picks New York’s Judges?

Legislators in Albany should replace the state’s exclusionary judicial selection system in which judges are “made” with one that actually reflects our democratic values.

  • Cody Cutting
November 11, 2015

Last week, many New York voters looked at their elec­tion ballots and only saw judges. Even more confus­ing was that many of them had no oppos­i­tion. In Brook­lyn, for example, the same five candid­ates were listed three times, once for each of the major parties that nomin­ated them for the five avail­able seats. There were no other options. That hardly seems like a real elec­tion.

How do New York Judi­cial Elec­tions Work?

At first glance, New York’s method of elect­ing judges to its major trial court — confus­ingly referred to as the supreme court — is noth­ing extraordin­ary.

The process begins during the Septem­ber primar­ies. In each assembly district, voters elect judi­cial deleg­ates, resid­ents whose sole job is to repres­ent their neigh­bor­hood at a party nomin­at­ing conven­tion held a few weeks later. At these conven­tions, which unite deleg­ates from the vari­ous assembly districts within a larger judi­cial district, the deleg­ates cast votes to determ­ine which judi­cial candid­ates will appear as the party’s nomin­ees on the general elec­tion ballot. Voters then elect judges to 14-year terms in the Novem­ber elec­tion.

It all sounds highly demo­cratic, but the public engage­ment allegedly present in New York’s system is in fact an unful­filled prom­ise. In real­ity, the system entrusts the selec­tion of judges neither to the voting public nor to elec­ted offi­cials. Instead, unac­count­able polit­ical party lead­ers control every step of the process.

First, most deleg­ates are hand­picked by their county’s party offi­cials and do not even appear on the ballot because they almost always run unop­posed. Accord­ing to the state Board of Elec­tions, only one of the 11 assembly districts in the Bronx featured a contested deleg­ate elec­tion this year. This means that voters often have no chance to pick who repres­ents them at the conven­tions.

Second, the nomin­at­ing conven­tions are strictly for show. The party lead­ers decide on their preferred judi­cial candid­ates in advance and direct the deleg­ates accord­ingly; other candid­ates have no real­istic shot at nomin­a­tion. The deleg­ates — usually party loyal­ists, their family members, or members of their campaign staffs — receive no inform­a­tion about the judi­cial candid­ates in advance of the conven­tion, and are often given no time to debate each candid­ate’s qual­i­fic­a­tions, accord­ing to a New York Times invest­ig­a­tion. In more than 96 percent of nomin­a­tions, no altern­ate candid­ates are put forward by the deleg­ates and “conven­tions” last as little as 20 minutes. Even party lead­ers have conceded that the conven­tions are largely perform­at­ive. “These deleg­ates really don’t have any func­tion,” said one assembly­man, acknow­ledging that his wife, a deleg­ate, knew “zero” about the judi­cial candid­ates. “There is a fairly justi­fied percep­tion that things are sort of decided before the deleg­ates go in.”

All of this might be slightly less objec­tion­able if voters had a genu­ine choice in the general elec­tion. But because of cross-party endorse­ments (when the same candid­ate appears on the ballot under multiple party lines) they are frequently asked to pick the same number of judges as there are candid­ates. For example, in New York’s 8th Judi­cial District, which includes Buffalo, both seats were determ­ined before the elec­tion by cross-endorse­ments. This is not an aber­ra­tion. More than half of the district’s supreme court nomin­ees since 1995 have been cross-endorsed, leav­ing voters with noth­ing to do but approve the names the parties have placed before them.

The prob­lem with judges being de facto selec­ted by unac­count­able party lead­ers is not only that it is undemo­cratic, but also that it raises ques­tions about judi­cial qual­ity. Without demo­cratic account­ab­il­ity, there is a higher risk that a candid­ate’s job qual­i­fic­a­tions could take a back­seat to other, polit­ical, consid­er­a­tions. The two cross-endorsed supreme court nomin­ees for the 8th District, for example, received “Qual­i­fied” ratings from the Erie County Bar Asso­ci­ation, the lowest of its three passing ratings.

Across the state, supreme court judges preside over the most complex civil and crim­inal proceed­ings in the state, impact­ing thou­sands of lives. Any comprom­ise in the qual­ity of our judges comprom­ises the justice they mete out.

What’s Next?

In spite of the system’s demo­cratic flaws, New York’s use of the deleg­ate primary conven­tion has survived consti­tu­tional scru­tiny. The U.S. Supreme Court upheld its consti­tu­tion­al­ity in a 2008 decision (the plaintiff in the lawsuit, Judge Margar­ita López Torres, was repres­en­ted by the Bren­nan Center), but emphas­ized that they backed neither the merit nor the wisdom of such a model. In a concur­ring opin­ion joined by Justice David Souter, Justice John Stevens said the ruling “should not be misread as endorse­ment of the elect­oral system under review.” Quot­ing Justice Thur­good Marshall, Justice Stevens added, “The Consti­tu­tion does not prohibit legis­latures from enact­ing stupid laws.”

Nor does the Consti­tu­tion prohibit legis­latures from being smart. In 1977, the legis­lature passed — and New York­ers approved — an amend­ment to the state consti­tu­tion to change the selec­tion of judges to the state’s highest court, the court of appeals, away from the conven­tion-based primary system.

As far back as 1989, the New York Commis­sion on Public Integ­rity noted, “[M]ost of our judges are chosen by elec­tions that are almost totally controlled by polit­ical party lead­ers, a system which clashes with the funda­mental object­ive of an inde­pend­ent and nonpar­tisan judi­ciary…New York can and must do better.”

Legis­lat­ors in Albany should replace this exclu­sion­ary selec­tion system in which judges are “made” with one that actu­ally reflects our demo­cratic values.

(Photo: Think­stock)