Judge Napolitano: A Judicial Surprise (MORE, CLICK HERE)

A Judicial Surprise
New York Sun OPINION

By ANDREW NAPOLITANO - January 25, 2008

While New Yorkers were preoccupied with the stock market slide, the Giants in the playoffs, and the presidential primaries, the United States Supreme Court was studying the Constitution of the State of New York and examining the manner in which it permits politicians to select judicial nominees. And it did not like what it found.

Here's the background. Judge Margarita Lopez Torres was elected to a four-year term on the Civil Court in the Bronx in 1992. She was nominated to that position by the Democratic Party through a direct primary election.

Shortly after assuming her job, party leaders began to demand that she make patronage hires, demands to which she says she could not acquiesce since doing so would be inconsistent with being a member of an independent judiciary.

The party bosses wanted Judge Lopez Torres to hire their friends and political hacks in various courthouse positions, full-time and part-time, as sort of a payback to them for assuring that she would continue to receive the Democratic nomination for Civil Court judge.

Judge Lopez Torres, who by many accounts has served admirably and well, desired promotion to the Supreme Court of the State of New York which, despite its name, is the basic trial court of general jurisdiction, but is still superior in jurisdiction, authority, prestige, and pay to the Civil Court.

To become a Supreme Court justice in the State of New York, one either needs to be promoted from the Civil Court and then elected to a 14-year term or one needs to be elected directly to a 14-year term. To be elected, one needs to have one's name on the ballot, and to get on the ballot one needs the imprimatur of a nominating convention of one of the major political parties in New York.

Judge Lopez Torres quickly learned that her decision to reject the patronage hires requested of her by Democratic party bosses meant she could never receive a judicial nomination from them, and, without the nomination, would never become a justice of the Supreme Court of the State of New York. So, she sued the bosses.

She and several registered voters who wanted to vote for her but could not filed a complaint in federal court, and in the initial round persuaded a judge to invalidate the state's nominating system. The Court found that the New York system which permits party conventions (read, party regulars controlled by party bosses), rather than voters, to decide who becomes a judicial nominee effectively denies voters the right to choose a nominee and forces potential nominees to play ball with party bosses. The decision invalidating the New York system was upheld unanimously by a 3-judge panel of the United States Court of Appeals for the 2nd Circuit. The bosses appealed to the United States Supreme Court.

What happened thereafter was a surprise to everyone involved. Justice Antonin Scalia, writing for a unanimous Supreme Court, utilized something we rarely see in appellate judges today: The principle of judicial restraint.

Even though the Court did not like the New York system, even though it doesn't always produce better judges, even though Judge Lopez Torres was a good judge who should be able to present her case to the voters without having to hire people whom the party bosses want her to hire, the United States Supreme Court let stand the New York State Supreme Court system for choosing judicial nominees.

Judge Lopez Torres argued that the New York system violated her First Amendment rights by forcing her to use words indicating approval of the bosses whom she disrespected and by compelling her to associate with them. Not only does the First Amendment — "Congress shall make no law … abridging the freedom of speech … or the right of the people peaceably to assemble … " — prohibit Congress and the States from punishing speech or assembly, it also prohibits them from compelling speech or assembly.

The government cannot punish speech or silence, and it cannot prohibit associating with others or compel any associations. But the United States Supreme Court would hear none of this. Judge Lopez Torres chose to enter the system. No one forced her. And political parties as we know them, the Court held, would not exist if they could not command loyalty and exclude those who disagree. What about counties like Manhattan with one party rule? The party must be doing something right in those counties, Justice Scalia wrote, or the voters would not tolerate it.

The Supreme Court decision brought together judicial minds as disparate as Justices Ruth Bader Ginsburg and Clarence Thomas to agree on the principle that the federal courts, as Justice Felix Frankfurter once famously wrote, do not exist in order to right every wrong. All Judge Lopez Torres wanted was access to the ballot: The right to have voters say yea or nay to her. The members of the Court to a person thought she should have that right, but found nothing in the Constitution guaranteeing it. Do laws that let party bosses choose our judges serve the people's best interests? Of course not. Do laws that let them pick who they want to serve for the people's best interests? Not according to the nine appointed life-tenured justices of the United States Supreme Court. Will federal courts remedy this? No, because as Justice Thurgood Marshall liked to say "[t]he Constitution does not prohibit [state] legislatures from enacting stupid laws."

So, we in New York remain subject to party bosses and all their whims and deals and chicanery in choosing our judges. This is surely patently unwise, but it is not unconstitutional.

Judge Napolitano, who was on the bench of the Superior Court of New Jersey between 1987 and 1995, is the senior judicial analyst at the Fox News Channel. His latest book is "A Nation of Sheep" (Nelson, 2007).