Guest Blogger: New York Judicial Conventions: A Failure of Transparency
By James Sample, Associate Counsel in the Democracy Program of the Brennan Center for Justice at NYU School of Law.
I am grateful to the ACS Editors for the opportunity to respond to Daniel Kotler's article summarizing Lopez Torres v. NY State Board of Elections et al.. Lopez Torres is a Section 1983 lawsuit charging that New York State's party-boss dominated convention system for Supreme Court justices is an unconstitutional deprivation of the rights of voters, candidates, and political party members. I am an attorney with the Brennan Center for Justice at NYU School of Law and together with pro bono counsel, Arnold & Porter LLP, and Jenner & Block LLP, we represent the plaintiffs in the case.
Lopez Torres arises from an anomaly in the long effort to improve the courts. For a century, local party machines across America controlled who could sit as a trial judge. It was often a feast for corruption and a way to keep minorities and others not beholden to the power structure off the bench. A century of progressive reform efforts have stripped party leaders of that power in nearly every jurisdiction. In New York, after waves of corruption scandals, party bosses are no longer even allowed to choose low-level civil employees, but through a quirk of the law, they are empowered to-and do-choose judges. This has led to a lack of diversity, repeated scandal and influence peddling, and a lack of public confidence in the courts.
The Brennan Center filed suit in federal court in March of 2004 on behalf of several plaintiffs, including Civil Court (now Surrogate Court) Judge Margarita Lopez Torres, Common Cause/NY, and several voters across the state. The named defendant is the New York State Board of Elections. The Association of Supreme Court Justices, the New York County Democratic Committee, and the New York State Republican Party all intervened as defendants to defend the status quo judicial convention system. On appeal, a wide array of groups including seven minority bar associations and legal organizations joined our efforts as amici. To be fair, other groups supported the appellants. All of the briefs in the case, including those of our adversaries, are available here.
New York's system of selecting trial court judges (as Mr. Kotler notes, in New York, the trial court of general jurisdiction is known as the Supreme Court) rewards influence, insiders and cronyism. 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 an opaque, de facto appointment system controlled by political party leaders. The system effectively allows party leaders to handpick their party's nominee by controlling who-like Mr. Kotler-becomes a delegate to the convention.
The lawsuit contended, and U.S. District Judge Gleeson found, that the system imposes onerous structural obstacles which ensure that influential party bosses, not voters, select Supreme Court judges. Those obstacles have deprived Judge Lopez Torres and other highly qualified candidates the opportunity to meaningfully compete for their party's nomination.
How exactly does that deprivation occur in practice? Take the case of Judge Lopez Torres. She was elected to Civil Court with overwhelming support. Once elected, Judge Lopez Torres declined to do the bidding of party bosses by, for example, refusing to hire as her law secretary an unqualified individual hand-picked by party leadership. Instead, she hired someone she felt was qualified and then refused to fire that person despite leadership's instructions to the contrary. Consequently, when she sought higher judicial office, a seat on the NY Supreme Court, she was informed that she would not be nominated. It is precisely such brazen patronage and power to which the party bosses cling via the opaque system. All of which explains why the defendants in the case include the party machines of the two major parties-who almost inexorably disagree with each other in other contexts.
After a 14-day hearing and after reviewing over 10,000 pages of evidence, Judge Gleeson found that Judge Lopez Torres's experience "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." Moreover, the process effectively silences rank-and-file voters who wish to support candidates, who, like Judge Lopez Torres, lack the party leadership imprimatur to which Judge Gleeson refers.
Judge Gleeson's extensive findings were consistent with those of a blue-ribbon panel appointed by New York's Chief Judge Judith Kaye to examine and promote public confidence in New York's judicial elections. In 2004, that panel, known in New York as the Feerick Commission, found that "[t]he uncontested evidence before the Commission is that across the state, the system for selecting candidates for the Supreme Court vests almost total control in the hands of local political leaders."
It should come as no surprise that the vesting of that "almost total control" in a good old boys network has failed to serve the interest of a diverse judiciary. In 1992, the New York State Task Force on Judicial Diversity concluded 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," i.e., the judicial convention system. The Task Force continued: "opening the system is essential to improving diversity on the bench" because "many well qualified minorities and women lawyers" do not have the "political entr?©e or even political party service necessary in order to be a viable candidate."
Lawyers for both sides faced aggressive questioning in the Second Circuit before Judges Chester Straub, Sonia Sotomayor, and Peter Hall on June 7th. The panel probed the constitutionality of New York's unique system, as well as Judge Gleeson's presently stayed remedy of judicial primaries in the absence of legislative action to cure the constitutional infirmities Judge Gleeson identified.
At oral argument, counsel for the political parties argued that there is nothing unconstitutional about party leaders dictating the outcome of the convention process. That contention gave rise to, what was, from our perspective, perhaps the most poignant moment in the Second Circuit oral argument, namely when Judge Straub posed the question of whether, "if [the parties] find a way to nullify the right of the electorate to participate in any way, that is not a class to be protected?" We, at the Brennan Center, think it is.
As Judge Gleeson's opinion states,
Republican Party of Minnesota [v. White] stands for a principle of transparency. A state may not choose to have judicial elections and then stifle the electoral process . . . by creating electoral practices that effectively keep candidates out of contention entirely, in the name of protecting the judicial office from politics. A state may decide whether or not voters will be the best choosers of judges. But it may not say one thing - "The justices of the supreme court shall be chosen by the electors," N.Y. Const. art. VI § 6(c) - and do quite another, as they have here by effectively transferring the power to choose major party leaders. Put simply . . . the state may not pass off the will of the party leaders as the will of the people. Because that is exactly what the New York judicial convention system does, it violates the First Amendment.
So, at bottom, this case is about transparency and openness of access. New York is not required to elect its judges, but it has chosen through its constitution to do so. Because New York has so chosen, transparency and openness of access is required. And when it comes to democracy, transparency and openness of access are more than abstract values. They are a matter of process.
The District Court opinion and the briefs of all parties and amici in the case are available here.