New York Sun: Judge Brennan rolling in his grave (MORE, CLICK HERE)

Light 'Em Up
New York Sun Editorial - January 17, 2008

Justice Brennan must be rolling in his grave. The center at New York University that bears his name took a First Amendment case about political cronyism in Brooklyn all the way to the Supreme Court and couldn't get a single vote. Not a one. Not even a twitch of the bow tie of Justice Stevens, with whom Justice Brennan sat on the bench for 15 years, or a ruffle from a First Amendment absolutist like Justice Scalia, or a swing voter like Justice Kennedy, who also, albeit for a shorter time, shared the high bench with Brennan.

At issue in the case was how New York State picks judges for its state Supreme Court. New York courts are famously confusing. Here's an example: the top court is the Court of Appeals, where the members of the bench prefer to be addressed as "judge." Two levels below is the State Supreme Court, which despite its fancy name, is the basic trial court. The several hundred jurists on that court like to be called "justice."

About the only thing more confusing is how Supreme Court justices are selected. The last stage of the process is Election Day, when voters go to the polls and elect the judges. In New York City at least, the candidates put up by the Democratic Party will almost always get elected. So the trick to getting to the bench is getting that nomination.

There isn't any primary. Instead there is something called a judicial nominating convention, attended by several dozen party delegates. These conventions aren't the model of democracy. In practice, the candidate who has the support of the party boss, like Assemblyman Vito Lopez in Brooklyn or Assemblyman Herman "Denny" Farrell in Manhattan, is almost always the person who gets to be judge. In other words, judge-making is the last true vestige of the old patronage system left to county bosses.

One lower court judge, Margarita Lopez Torres, with the backing of the Brennan Center, challenged the whole system. As a civil court judge, Ms. Lopez Torres had sought a spot on the state Supreme Court bench, but never could get the support of Mr. Lopez's predecessor, Clarence Norman, Jr., who, by the way, is now in prison on corruption charges. The editors of these pages are great admirers of Ms. Lopez Torres and sympathetic to others who find themselves on the fringes of the party system. But, as we indicated October 3 in our editorial "Lopez-Torres Before the Nine," we didn't have much sympathy with her case. She could have run as an independent. We had a similar feeling when Mayor Bloomberg tried to institute in city politics a system of "non-partisan" elections.

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And it is something for the country to think about as the great political parties thrash their way through trying to choose by a vast, monumentally expensive primary system, candidates who for years were chosen in smoke-filled rooms of party conventions. If the parties start to think about reforming the vast circus and returning to the convention system (as R. Emmett Tyrrell suggests nearby), they will find their standing buttressed by the decision of all nine justices of the Supreme Court in Lopez Torres. "A political party," the justices said, "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." And The Great Scalia, writing for the majority, said that what might constitute a "fair shot" at a nomination is a reasonable question for a legislature, but not for judges, and went on to say: "Party conventions, with their attendant 'smoke-filled rooms' and domination by party leaders, have long been an accepted manner of selecting party candidates." To which we can only add, "light 'em up."