Judge Dread

For the first time in thirty years, I didn't know who was on the Democratic primary ballot for Brooklyn Civil Court, am not sure who won the primaries and don't know who the candidates are for the Supreme Court.

That might not  sound surprising for the average New Yorker. After all, there was virtually no coverage of  any of the races by the daily newspapers (let alone tv or radio) and even if there had been, candidates for judge are very circumscribed in permissible topics for discussion, prohibited from pronouncements on issues likely to come before them, like the death penalty.

In my case, however, I suppose that I am more than casual observer. Aside from being a lawyer who still occasionally appears in court, during much of the '80s I played a role in selecting such candidates as counsel to the Brooklyn party and in the '90s by actively supporting candidates (I am rumored to have campaigned for my sister Alice by proclaiming, "Vote for Fisher-Rubin! You'll get an adjournment!").  

The point being that if even a practitioner has trouble keeping up, why should we expect any greater interest from the general public?

This is no academic cant. Because of a recently affirmed federal court ruling, New York's current system for picking candidates for state Supreme Court Justice through sham conventions controlled by the party leaders is about to be replaced by open primaries. Successful candidates are likely to be those with close ties to… the same party leaders. Meet the new boss; just like the old boss. However, it also opens the door to those with money, either their own or from a special interest (such as insurance companies and trial lawyers, groups which fun many of the contested judicial around the country, such as in Texas. Full employment for consultants and elected officials' relatives!

During my tenure as party lawyer, I was a defender of the status quo, intoning the wisdom of the electorate as the final arbiter of qualifications. With a little distance, I realized that the system was not designed to necessarily pick the best judges. That's not to say that many outstanding jurists didn't come out of the clubhouse system, any more than to deny that many good principal were picked by the old local school boards, but the system itself was not conducive to always getting the best. I don't recall a single law professor, large firm associate or partner, Assistant US Attorney or former federal court clerk actively floating their name for the Brooklyn  Supreme Court. No surprise since annual bar association seminars on seeking a judgeship routinely advised that local community service was far more important than having been law review editor.

Facing the prospect of the current system being expanded to the Supreme Court, reformers have once again set their sights on merit appointment, some variation of the system now used by the Mayor for Criminal and Family Court appointments and the Governor for the Court of Appeals, by which the executive selects from a small pool screened by a quasi-independent panel.

The best argument against merit selection is that the current system is more responsive to demographic changes. Party leaders maintain their positions by consensus and need to demonstrate to emerging voter blocks that they are respectful of their power. In effect, they elevate demographics among the other qualifications for office. To illustrate the point by the negative, Gov. Pataki felt politically safe in not re-appointing Judge George Bundy Smith, the Court of Appeals' only African-American member (found qualified by the Pataki-appointed screening committee). Query the pressure on the next Governor when an opening does occur?

If the State Legislature decides to overhaul the system, rather than merely accede to the new primary process, it will have to start tackling that problem Day 1, as a certain top state lawyer has been known to set as the starting point for important issues. It takes two years to amend the State Constitution.  Will the new Governor make this a priority?

In the meantime, any lawyer with enough years of service to be eligible and enough money to self fund a campaign can consultant-up and go for the gavel. District leaders will undoubtedly be in business for themselves. Their need to go along with a county leader in the hopes that it will be soon their turn to advance a name has been greatly diminished.

So, unless a new Governor make the Legislature care enough to take judicial positions away from party leaders, get ready for more elections between nobody you've heard of and no one you like.

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This is my first post on Room 8, for which I am delighted to have been asked to contribute. Future posts should be more pithy and topical.