NYLJ on Fixed Judicial Election Decision (MORE, CLICK HERE)

State's Judicial Election System Is Upheld
by Daniel Wise and Joel Stashenko
The New York Law Journal - January 17, 2008

The U.S. Supreme Court yesterday unanimously upheld the constitutionality of New York state's convention system for nominating Supreme Court justices.

Although four justices, in two separate concurring opinions, expressed strong reservations about the wisdom of the 86-year-old process, the Court held that, while New York's system might be unfair, it is not unconstitutional.

The Court's majority opinion, written by Justice Antonin Scalia and joined by seven of the Court's eight other justices, said that traditional electoral practice "gives no hint of even the existence, much less the content, of a constitutional requirement for a 'fair shot' at party nomination."

Indeed, Justice Scalia wrote, "Party conventions, with their attendant 'smoke-filled rooms' and domination by party leaders, have long been an accepted manner of selecting party candidates."

The outcome had been widely anticipated after oral argument in October, when justices from both the conservative and liberal wings of the Court expressed skepticism about the challenge mounted by the Brennan Center for Justice (NYLJ, Oct. 4, 2007).

The ruling ends two years of excruciating uncertainty since Eastern District Judge John Gleeson held that New York's system was so unwieldy that it violated the First Amendment associational and ballot-access rights of state Supreme Court candidates who lacked the backing of party leaders, and of party members wishing to vote for those insurgents.

Eight months later, the U.S. Court of Appeals for the Second Circuit unanimously affirmed Judge Gleeson's preliminary injunction, which ordered New York to hold primaries for the selection of Supreme Court candidates unless the Legislature devised some other solution. The decision has been pending U.S. Supreme Court review.

Before the Court agreed to review the case last February, there had been a burst of political activity as state's leaders sought to forge a legislative fix (NYLJ, Jan. 26, 2007).

But in an interview yesterday, Senator John DeFrancisco, R-Syracuse, chairman of the Senate Judiciary Committee, said the high court's ruling will make it "much more difficult" to change the system since both parties "no doubt" want the current system to continue.

Helene Weinstein, D-Brooklyn, chairwoman of the Assembly's Judiciary Committee, agreed that without a mandate from the Court to change an unconstitutional nominating convention system, the prospects of the Legislature making substantial alterations are remote.

Nonetheless, she said, lawmakers should focus on recommendations for improving the convention system made nearly two years ago by a task force chaired by former Fordham University School of Law Dean John D. Feerick (NYLJ, Feb. 7, 2006).

Disruption Feared

Because of concern over the disruption that would be caused if incumbent Supreme Court candidates were forced to run in primaries this year, the Association of the Supreme Court Justices of the State of New York on Tuesday filed a motion with Judge Gleeson seeking an order that would have kept the convention system in place for this year no matter the outcome of the U.S. Supreme Court's ruling in New York State Board of Elections v. López Torres, 06-766.

Yesterday's ruling rendered that application moot, and the association's president, Queens Justice Joseph Golia (See Profile), called the decision a great relief for the 21 incumbent Supreme Court justices who will have to stand for re-election this fall. As sitting judges, he said, they would have faced "great difficulties in raising funds and participating in other political activities necessary to win a primary."

Brooklyn Justice Ariel E. Belen (See Profile), who was appointed to the Appellate Division, Second Department, on Tuesday, called the ruling "a great relief to myself and four other Brooklyn justices" who are up for re-election this year.

"We would have been at an obvious disadvantage" running against opponents who had started their campaigns earlier and "hampered by our status as sitting judges," he added.

Andrew J. Rossman, one of the two lawyers who defended the convention system before the Supreme Court in October, said in a statement that the ruling is "a complete vindication of New York's method of judicial selection which for nearly a century has produced one of the nation's leading judiciaries."

The other lawyer who defended New York's system before the Court, former U.S. Solicitor General Theodore B. Olson, now a partner at Gibson, Dunn & Crutcher in Washington, D.C., was traveling yesterday and unavailable for comment.

Frederick A.O. Schwarz Jr., a former city corporation counsel who argued the case for the challengers, suggested in a written statement, that the U.S. Supreme Court's ruling may not be the final word.

Mr. Schwarz, a former litigation partner at Cravath Swaine & Moore who is now senior counsel at the Brennan Center, said "further litigation options" are being considered. In the meantime, Mr. Schwarz called upon civic, bar and political leaders to demand "legislation that will end the closed process, which for too long, undermined public confidence in New York's courts."

James Sample, also an attorney at the Brennan Center, said one option would be to pursue the equal protection claims Judge Gleeson did not address in his ruling upon the plaintiff's motion for a preliminary injunction.

Corporation Counsel Michael A. Cardozo weighed in yesterday, saying "We are very disappointed in the Court's decision." He added in a written statement, "There is nothing in the Court's ruling that prevents the adoption of legislation that would vastly improve New York State's present method of electing judges. We will continue to push to secure passage of such legislation."

Brooklyn Surrogate Margarita López Torres (See Profile), the lead plaintiff in the case, asserted in a statement that the two concurring opinions "make clear" that the U.S. Supreme Court's decision should not "by any means be read as endorsing New York's flawed system."

Professor Nathaniel Persily, an election law expert at Columbia Law School, called the Court's "unanimous ruling in favor of party autonomy a pretty significant blow to good government groups."

Unique System

The Brennan Center suit argued that New York's system barred political outsiders by its cumbersome requirements. For instance, to field a slate of convention delegates in New York's 12 judicial districts an outsider would have to collect anywhere from 4,500 to 12,000 petition signatures in 37 days.

New York is the only state to use a convention system to nominate judicial candidates though 33 states provide for the election of at least some of their judges.

The Brennan Center offered Surrogate López Torres as Exhibit A. She had won countywide elections first for Civil Court in 2002 and then for Surrogate's Court in 2005, but could not secure a Supreme Court nomination without support from her party's leaders.

She claimed she lost their support because she had refused to hire people they had recommended to be her law secretary.

Judge Gleeson made extensive findings of fact, accepting the plaintiffs' claims that the system was rigged against insurgent candidates, and the Second Circuit affirmed, holding that New York's system "through a Byzantine and onerous network of nominating phase regulations employed in areas of one party rule has transformed a de jure election into a de facto appointment."

The Second Circuit, in an opinion by Justice Chester J. Straub, ruled that the First Amendment gives insurgent candidates and voters alike a "realistic opportunity to participate in [a political party's] nominating process."

However, Justice Scalia wrote, the challengers' position, adopted by the lower courts, boiled down to "nothing more than that the party leadership has more widespread support than a candidate not supported by the leadership."

The challengers, he concluded, "are in no position to rely on the right that the First Amendment confers on political parties to structure their internal process and select the candidate of the party's choosing."

Election Questioned

Justice Anthony M. Kennedy, the only member of the Court not to sign Justice Scalia's opinion, concurred in the judgment but wrote separately to raise concerns about whether the process of electing judges is "consistent with the perception and the reality of judicial independence and judicial excellence." But, he also stated, that in his view the Court's analysis "is correct in important respects."

"If New York's statutes for nominating and electing judges do not produce both the reality and perception of a system committed to the highest ideals of law, they ought to be changed and changed now," though, Justice Kennedy added, the López Torres suit does not permit us to invoke the Constitution in order to intervene.

Justice Stephen G. Breyer signed onto the portion of Justice Kennedy's opinion that addressed the tension between electing judges and the need to preserve the independence of the judiciary.

Justice John Paul Stevens also wrote a separate one-paragraph concurrence, which was joined by Justice David H. Souter, in which he cautioned, "I think it appropriate to emphasize the distinction between constitutionality and wise policy."

To anchor his point, Justice Stevens recalled former Supreme Court Justice Thurgood Marshall having said on "numerous occasions" that "the Constitution does not prohibit legislatures from enacting stupid laws."

- Daniel Wise can be reached at dwise@alm.com. Joel Stashenko can be reached at jstashenko@alm.com.

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