Letter From The President Of The New York City Bar Association

2008-04-01 00:00

To The Readers Of The Metropolitan Corporate Counsel :

By now most of you have read about the United States Supreme Court's reversal of Lopez Torres v. New York State Board of Elections , the suit challenging the judicial convention method for nominating state Supreme Court Justices. The City Bar Association participated as an amicus before the Supreme Court in support of the lower court decisions, which found the convention system deprived insurgent candidates of a fair chance to be considered for a political party's nomination.

The Supreme Court declined to hold the convention system unconstitutional, reasoning that political parties generally had the right to determine how candidates can obtain their nominations. The decision was unanimous, but four justices, in concurring opinions, noted their reservations about New York's judicial convention system.

As Justice John Paul Stevens noted in his concurring opinion, "Our holding should not be misread as an endorsement of the system under review." He then emphasized the distinction between constitutionality and wise policy. Justice Kennedy, in his concurring opinion, noted that if New York's system does not produce the perception and reality of integrity and fair play, it ought to be changed. And nothing in the decision prevents New York's legislature from enacting that change.

That the convention system was found to be constitutional does not mean it is a good system, or the right system for New York. It continues to be largely under the control of local party leaders, and because in many areas of the state one party dominates the elections (including New York City) in those areas the leader of the dominant party in effect chooses who sits on the Supreme Court. While many Supreme Court Justices are truly fine jurists, the system is in no way designed to guarantee that, or to assure the voters that quality, rather than party loyalty, is the major selection criterion.

The City Bar has long urged the establishment of a commission-based appointment system for the selection of judges. Our most recent report on the subject, by the Task Force on Judicial Selection, chaired by Robert Joffe, argued again for this approach. Under the Task Force's formulation, commissions would be set up around the state that are composed of both lawyers and non-lawyers.

Various officials in the executive, legislative and judicial branches of government would designate well-established civic organizations and bar associations, where appropriate on a rotating basis, which would in turn designate people to sit on the commissions. The commissions would reach out to encourage lawyers interested in serving as judges to apply for consideration. The commissions would then select a limited number of candidates for each judicial vacancy, and the appointing authority would select one of those candidates to serve, subject to legislative confirmation. This is an inclusive system which we expect will result in a highly capable, diverse bench.

Proposals for commission-based appointment of judges have been introduced in the Legislature. Opposition has come from a number of quarters, led by the entrenched political establishment. People of good will have different views on this topic.

We believe that those favoring such a system have the better of the argument. The cost and fundraising requirements of running for election and the political compromises that have to be made, the limitations on judicial campaigning which deprive voters of sufficient knowledge to make choices, and the voters' lack of knowledge of the candidates all militate against the election system. And the overpowering role of local political leaders in the election process, and particularly the judicial convention process, can lead, and has led, to an unhealthy amount of political meddling and patronage in the court system.

With the Lopez Torres case behind us, we can again focus on what makes sense for New York's court system going forward. The commission-based appointment system, we believe, provides the best means of selecting those who will mete out justice in New York.


Barry Kamins