Judgment day

Ever vote for a State Supreme Court Justice before? Of course you haven't. You might think you have, but you've never even had the chance. In New York, Supreme Court judges are chosen by the voters, but only after a judicial district convention. Slates of delegates are elected in each Assembly district, and then those delegates decide who will be on the ballot for their particular political party.

In the city, the local Democratic Party machine usually controls the slates of delegates that inevitably end up winning the nominal races. Simply put, boss-controlled delegates vote for boss-approved candidates. As one veteran of the Bronx judicial convention told me, "I never knew who I was going to vote for until they told me when I got there. The conventions are a joke." 

If it sounds like a boring, complicated system, it is. The lack of interest or enthusiasm from the public has been a major reason why the smoke-filled backroom judicial conventions have flown under the radar for decades. Now imagine if that's how we voted for mayor. You'd be outraged.

Last month, Federal Judge John Gleeson issued a ruling declaring the judicial convention system unconstitutional. He noted that the lack of an open election violates the rights of both voters and candidates. Margarita Lopez Torres, newly elected as a Surrogate's Court judge in Brooklyn, and various good government groups including the Brennan Center of Justice, brought the suit after Torres had unsuccessfully tried several times to compete for the Brooklyn Democratic Party's nomination to the Supreme Court.

To prove her point, Torres offered the best evidence of the need to eliminate the closed, boss-controlled system: its history. Of the 568 handpicked candidates nominated for the State Supreme Court between 1994 and 2002, not one was defeated.

Gleeson's decision provides New York with the chance to catch up to the rest of the country in how it picks judges. But last week, State Senate Republicans debated and passed a bill that would repeal the judicial convention system and replace it with an open primary system, similar to what is currently in place to elect Civil Court judges. But local politicians were reluctant to vote for the bill. 

Were Democrats afraid to actually commit to their reform agenda? Not quite. 

The primaries that the State Senate bill would create would require judicial candidates to raise their own funds and would allow candidates from any party to run in any other party's primary election. The bill offered zero geographical guidelines for candidates. A Republican from Schaghticoke could run in a Democratic primary in Manhattan. 

"My prediction was that it would result in a lot of wealthy lawyers running for Supreme Court anywhere in the metropolitan area," said State Senator Eric Schneiderman, a Manhattan Democrat who voted against the bill. Another Manhattan Democrat, State Senator Liz Krueger, fears money would become the deciding factor in how judges were elected. Both Schneiderman and Krueger favor a system such as one that the Feerick Commission suggested in 2004, which included a public financing system for judges and judicial retention elections, where voters are given a yes or no vote to keep a judge, instead of selecting between two candidates.

Krueger said she would also like to see a thorough vetting process for judicial candidates, to keep voters well informed about the best candidate. "Nobody becomes a good judge overnight just because we elected them," she said. 

Senate insiders admitted to me that public financing is a non-starter in Albany. While the Senate Republican majority is grasping at the mantle of reform in a fight for their lives to retain their majority, they are loathe to support a public financing system since their epic ability to fundraise could help swing judicial seats to their party.

In the absence of a strong public financing system, the Republican bill is unacceptable, said Krueger.

Schneiderman remains hopeful that real reform can be gleaned from Gleeson's decision, which has already been appealed. He also wouldn't mind holding off a change in the system for one year, since sitting judges coming up for reelection have not had any real opportunity to prepare for challengers. "If you're an incumbent, you've got to be a little bit nervous about facing some well-financed lawyer/activist," he said.

Though the bill has no chance of ever being brought before the Assembly, Senate Republicans have already begun to use its passage as an example of their commitment to reform. Schneiderman said that even if their heart is in the right place, their solution is poorly planned. He was sure his Democratic colleagues could do better, of course.

"When you get Liz Krueger and me voting against the Brennan Center, you know things are breaking down in peculiar ways," said Schneiderman. "Its just not a thoughtful solution."