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Bench Unfair Judge Picking Process Now

Published: May 3, 2006

New York Daily News
Wednesday, May 3, 2006

Bench Unfair Judge Picking Process Now
By James E. Johnson and Cristina Rodrguez

New York’s system of selecting trial court judges rewards influence, insiders and cronyism. Predictably, that system fails to produce a bench with racial and gender diversity, which are the prerequisites for fair decision-making and equal opportunity.

New York is one of 33 states that elects its general jurisdiction trial court judges in contestable elections. Every single one of the other 32 states allows candidates to compete for their party’s nomination (or a place on a nonpartisan election ballot) by filing notice, paying a small fee or gathering signatures directly among party voters. Not so in New York. Although the New York Constitution guarantees that “the justices … shall be chosen by the electors [i.e., the voters] of the judicial district in which they are to serve,” justices are selected through a de facto appointment system controlled by political party insiders.

What happens when a good old boys network controls who ultimately serves on the state’s highest trial courts? Consider the ordeal of Surrogate’s Court Judge Margarita Lpez Torres, the plaintiff who successfully challenged New York’s judicial selection system.

The Puerto Rico-born Lpez Torres refused to do the party leaders’ bidding, and therefore was repeatedly thwarted in her efforts to earn the Democratic nomination to the office of Supreme Court justice. In January, a federal court struck down the judicial selection system, ruling that it violated the rights of New York’s voters and candidates like Judge Lpez Torres.

According to the court, Judge Lpez Torres “demonstrated … that indisputable qualifications for the job and immense popularity among the candidate’s fellow party members are neither necessary nor sufficient to get the party’s nomination. Something different is required: the imprimatur of the party leadership.”

A closed, de facto appointment system means that thecomposition of the bench will fail to reflect the racial diversity of our state. Back in 1992, the New York State Task Force on Judicial Diversity warned that a “major cause of lack of diversity on the judiciary is the closed nature of the system now used in New York to elect [Supreme Court] judges.” Fourteen years later, the system for selecting trial court judges is still closed. And in five of New York State’s 12 judicial districts, there is not a single minority Supreme Court justice.

In Manhattan, 44% of sitting justices are minorities. But Manhattan’s record is the exception, not the rule: Persons of color serving as Supreme Court justices in this one county make up 92% of the statewide total of minority justices.

And the closed system has failed to bring about gender diversity. In 2002, the New York State Committee on Women in the Courts cited statistics showing that the Supreme Court had a lower percentage of women on thebench than any other court in New York State, except for the upstate county courts: 17% statewide.

Continued support for New York’s unconstitutional status quo runs counter to the goals of democracy. The time has come to create a judicial selection system that places judicial qualifications ahead of political patronage and opens the door to racial and gender diversity.

James E. Johnson is the chairman of the board of directors of the Brennan Center for Justice at NYU School of Law. Cristina Rodrguez is an assistant professor at NYU School of Law and serves on the Brennan Center’s board of directors.