hill country observerThe independent newspaper of eastern New York, southwestern Vermont and the Berkshires


Editorial November 2019



To New York’s reform list, add selection of judges



When New York voters go to the polls on Nov. 5, they’ll get to choose from among an array of candidates for local and county offices – and for state Supreme Court.

When it comes to choosing justices for the Supreme Court, which is actually the state’s trial-level court, most voters aren’t likely to have heard much about the candidates. But it won’t really matter, because the outcome of these races is almost always a foregone conclusion.

As with so many legislative districts, the boundaries of New York’s judicial districts are drawn to give an overwhelming advantage to one or the other of the major political parties.

Locally, in the 3rd Judicial District, which includes Columbia, Rensselaer, Albany and four other counties to the south and west, Democratic candidates almost invariably win. And in the 4th Judicial District, which includes Saratoga, Warren, Washington and eight other counties to the north, Republicans almost never lose.

But the selection process for New York’s trial judges goes to even greater lengths to deny voters any meaningful role.

For any other elective office in the state, voters in heavily Democratic or heavily Republican areas at least get the opportunity to choose candidates in party primaries. The candidates for state Supreme Court, on the other hand, are chosen through an arcane system of judicial “nominating conventions.”

It’s a system that’s tightly controlled by the bosses of the two major parties, who effectively choose the convention delegates as well as the judicial candidates. Ordinary voters get no say in this process, and competing candidates within each party have no way to get their names on the ballot.

Back in 2006, a federal judge declared New York’s system of judicial nominating conventions unconstitutional, calling it “an opaque, undemocratic selection procedure that violates the rights of voters and the rights of candidates who lack the backing of local party leaders.”

But the state appealed that ruling all the way to the U.S. Supreme Court, which held unanimously that, as Justice John Paul Stevens put it, “The Constitution does not prohibit legislatures from enacting stupid laws.”

What is so special about the judicial nominating system the state fought so hard to preserve?
Its defenders pretend the system is an open one. Instead of electing judicial candidates directly in party primaries, they say, voters get to choose delegates to judicial nominating conventions, which then pick each party’s candidates for the general election.

In reality, most voters never see the names of these delegates because, under New York’s election law, if only one slate of delegates runs, they are considered “duly elected,” and the state doesn’t bother to print their names on any ballot.

And because of the large number of delegates required in each judicial district – and the arcane rules for petition signatures that must be gathered to field a full slate of delegates, only the major political parties have the kind of organization necessary to stage a judicial nominating convention.

Some defenders of the current system have the gall to claim that it insulates the state’s judiciary from politics. Without it, they say, judicial candidates would have to raise more campaign cash and run more advertisements to get their messages out to voters as they seek 14-year terms on the bench.

In reality, of course, the current system makes the state’s judges beholden to the rankest form of politics: the closed-door, backroom variety. In one notorious case from a decade ago, a former justice and his patron, the former Brooklyn Democratic chairman, received prison sentences after an inquiry that began with reports of judgeships being bought with envelopes of cash.
If New York’s leaders don’t have confidence that voters can make good decisions about the selection of the state’s trial judges, they should consider setting up a merit system for appointing these judges. That would be far better than continuing the current system of sham elections.


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