Journal News Editorial: Affirming Injustice (MORE, CLICK HERE)

Affirming injustice
The Journal News EDITORIAL - January 17, 2008

The unanimous Supreme Court decision yesterday upholding New York's political-boss-driven framework for nominating trial judges is a landslide victory for the all-too-familiar - a status quo that rewards partisanship over independence and very often competency. Where two lower courts faulted the state's so-cozy and lamentable convention system for picking judicial nominees, the high court held that the framework met constitutional muster and, therefore, could not be undone by others in robes. If there ever is to be any changing or reforming the selection process, the court explained with no traces of irony, it will have to come from the state Legislature. Who said that the Supreme Court justices are without humor?

The ruling was not unexpected. During oral argument in October on Lopez Torres vs. the State of New York Board of Elections, several justices telegraphed their skepticism of the challenge to New York's 86-year-old nominating process, a convention-based system panned by the lower federal courts for being dominated by political party leaders - such that half the state Supreme Court elections between 1990 and 2002 were "little more than ceremony." Justice Stephen Breyer commented that maybe the prevailing framework was preferable to a "system where people raise $4 million from the lawyers in order to run for office" in a direct primary decided by the voters.

How trial-court justices are made in New York is not a tale for the squeamish. Republican and Democratic primary voters elect convention delegates, who then nominate judicial candidates. That doesn't sound so bad - except the convention delegates are typically party functionaries and hardly independent. For the most part, these agents of the parties rubber-stamp the candidates recommended by the party bosses. Very often these candidates run unopposed on the general election ballot. The legal challenge came after a Brooklyn Surrogate Court judge, Torres, was denied the opportunity to run for state Supreme Court, purportedly after angering political leaders by refusing to make patronage appointments.

The high court found no constitutional flaw in all this. "A political party has a First Amendment right to limit its membership as it wishes and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform," Justice Antonin Scalia wrote for the court. A concurring opinion by Justice John Paul Stevens noted that constitutionally sound doesn't necessarily mean sound public policy: "The Constitution does not prohibit legislatures from enacting stupid laws," he wrote, quoting late Justice Thurgood Marshall.

Both the state's major parties and the elections board asked the high court to reverse an appellate court ruling ordering the current system be scrapped in favor of a traditional primary for picking candidates. In the absence of public financing of campaigns - a dream-world reform sought by Gov. Eliot Spitzer and others - a traditional primary would be no step up from the current scheme. A reasonable alternative: Prevailing upon the Legislature to adopt good-government reforms ensuring the election of independent-minded convention delegates, thereby stripping the party bosses of their extraordinary influence and giving real power to the voters. Perhaps the Supreme Court justices aren't the only ones with a sense of humor. A Journal News editorial - www.lohud.com