For Meaningful Judicial Selection Reform . . .

NYC Bar Recommends:

• Select judges by commission-based appointment, rather than elections;
• Revamp Supreme Court convention system in interim; reject primaries.

The New York City Bar Association Task Force on Judicial Selection today urged the Legislature to seize the opportunity created by the Lopez Torres decisions to establish a commission-based appointment system to select New York's judges. Recognizing that this change would require a constitutional amendment - a three-year process - the Task Force, in its report, recommends interim legislation to render the Supreme Court judicial convention system constitutional and improve the methods used to select judicial candidates, rather than permitting nomination of Supreme Court justices by direct primary.

The report provides the framework for a constitutional amendment that would create a commission-based appointment system to ensure New Yorkers have access to the high quality judges to which they are entitled. It also provides for qualifications commissions to function under the interim proposal, recommending the most qualified candidates for all trial court elective judgeships in the state. The report says that an improved interim convention system would still be inferior to the ultimate solution of a commission-based appointment system. In conclusion, the report makes a firm statement that a commitment to diversity is essential to the success of any system of judicial selection.

Background

In January 2006, shock waves rippled through New York's judicial and political landscape as U.S. District Court Judge John Gleeson held in Lopez Torres v. N.Y. State Board of Elections that the current selection process for New York State Supreme Court judges is unconstitutional. The decision, which was affirmed by the Second Circuit, called for legislative action to change the selection system. If the state Legislature fails to act, the decisions provide that judicial primaries will go into effect for the next elections.

"The Lopez Torres decisions were right on the mark in their declaration that our current judicial convention system is a false exercise in democracy," said Robert Joffe, Chair of the Association's Task Force on Judicial Selection, which released the report. "Party leaders ultimately pick their favorites in judicial conventions, and voters, who are given little information about candidates, may simply vote on party line. This allows party leaders to handpick judges, frequently based more on political favoritism than on merit."

"The Lopez Torres decisions are yet another affirmation that the system of selecting our state's judges is broken, and that a commission-based appointment process is the best way to select our state's judiciary," said Association President Barry Kamins. "Judicial primaries are not the answer and will further erode public trust in the judiciary. The best approach before an appointive system can be established is to legislate major changes in the convention system to make it more responsive and less susceptible to party leader control."

The Right Fix: Constitutional Amendment
For Commission-Based Appointment System

The City Bar believes that New York state needs a constitutional amendment to provide for diverse and independent judicial qualification commissions that select a limited number of candidates from which the governor (or mayor in New York City) may choose. The candidates for appointment would be evaluated on the basis of intellectual capacity, integrity, fairness, independence, experience, temperament -- in short, the qualities New Yorkers expect and have a right to see in their judges. The limit on the number of candidates who can be reported from the screening committee will ensure that only the most meritorious are released instead of all who are adequate. The City Bar offers clear guidelines for the composition of these screening committees:

• The governor, legislative leaders, the Chief Judge and appropriate presiding justices would designate 15-21 law schools, non-profit, civic organizations and bar associations to act as non-governmental appointing authorities for each qualification commission. Each of the chosen organizations would appoint one member of the screening commission. The organizations would rotate after three years;
• The appointing authorities would give consideration to achieving a broad and diverse representation of the community;
• A statewide Judicial Qualification Commission would be established to function as policy body and oversight mechanism for all of the commissions, including setting criteria for organizations eligible to be designated;
• The commissions would recommend the three most qualified candidates for the first vacancy, and two such names for each additional vacancy in each court.

Fixing the Convention System in the Interim

The Association is fully aware that the Lopez Torres decisions require an immediate fix, and that a constitutional amendment will take time as well as political will. Therefore the Task Force report offered recommendations for the interim. According to Joffe: "A reformed convention system, although not nearly as good as commission-based appointment, would be a far superior alternative to judicial primaries and the subsequent erosion of public trust in the judiciary that New York can expect to see in September if no corrective action is taken."

The report emphasizes that Supreme Court primaries will exacerbate the pressures to raise campaign funds, and meritorious candidates without deep pockets or strong party connections would again lose out. The judicial convention system, on the other hand, "is potentially more amenable . to the nomination of the most qualified candidates," and "has the potential to promote greater diversity among candidates."

The Task Force recommends changes to the judicial convention system designed to address the system's infirmities, including:

• Smaller and reconfigured districts from which candidates would be nominated;
• Fewer judicial convention delegates, far lower petition signature requirements to run for delegate, and opportunities for delegates to run as a slate or indicate the Supreme Court candidates for whom they are pledged.

The Task Force also recommends establishing eight judicial qualification commissions around the state, configured as under the proposal for commission-based appointment of judges, which would review qualifications for candidates seeking election to trial courts in New York. All candidates would be required to submit their qualifications for review. Each commission would name a limited number of candidates as "most qualified" for each vacancy, and would also list all those it found "unqualified."

The Importance of Diversity

The Task Force is committed to a judicial selection system that effectively promotes a diverse judiciary and ensures that a broad array of views and experiences are brought to the bench. Yet after reviewing a large variety of data, empirical studies and articles, the Task Force realized that the data did not allow it to conclude whether, on the statewide level, the appointive or elective system better promotes diversity. Instead, the Task Force concluded that the following improvements must be made to one or both systems in order to achieve a more diverse bench:

• Provide public financing for all judicial elections so that candidates are not barred due to financial considerations;
• Codify the requirements that screening commissions be independent and diverse and that the nominating authorities, when viewed as a whole, be diverse;
• Educate the public on the need for a diverse judiciary;
• Reduce the number of delegates to the judicial district convention in order for all candidates to be able to succeed with fewer votes;
• For the appointive system, encourage the appointing authority to commit to the importance of diversity.

About the Association
The New York City Bar Association (www.nycbar.org) was founded in 1870, and since then has been dedicated to maintaining the high ethical standards of the profession, promoting reform of the law, and providing service to the profession and the public. The Association continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities.

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