NY Daily News: Make Justice Blind Again

Make justice blind again for New York's judiciary
The New York Daily News - OP-ED- by Victor A. Kovner - April 23, 2010

New York City's public campaign financing system has proven to be a model for the nation in regulating how money - in the form of campaign contributions to candidates - can distort the selection process of our elected officials. Unfortunately, the judiciary - where the nexus of money, politics and official performance is most corrosive to public confidence in the administration of justice - does not fall under its mandate. The Fund for Modern Courts is today issuing a report containing a proposal we believe would strengthen public confidence absent a broader reform of the judicial selection process. Modern Courts has long supported merit selection of judges at all levels of our multilayered judicial system. But currently, most judges in the Supreme and Civil Courts, among others, are chosen in elections where few voters know the candidates, and ethical obligations constrain the candidates from presenting more than their resumes and endorsements. And virtually the only contributors to judicial candidates, other than the candidates' personal assets, are lawyers, many of whom will then appear before those judges. That is not a recipe for justice and fairness.

Many judges run first in party primaries, prior to a general election against another party's candidate. State Supreme Court justices are nominated in party-controlled judicial conventions where partisan concerns trump quality concerns. Sometimes the same candidate is cross-endorsed on two or more party lines, making elections mere formalities. Moving to merit selection would require a lengthy process of state constitutional change, led by partisan officials who benefit from the current system. We cannot wait that long. Modern Courts wants the Administrative Board of the Courts to adopt a per se rule requiring judges to recuse themselves from cases in which any party - the defendant, plaintiff, any holder of more than 5% of the stock in one of the parties, any insurance company with an interest in the outcome, or the attorneys - has made contributions to the judge's campaign totaling $1,000 or more. This rule would avoid the kind of egregious behavior cited by the U.S. Supreme Court last year in Caperton vs. A.T. Massey Coal Co., which found that a judge on West Virginia's highest court should have recused himself in a case in which Massey's CEO independently spent $3 million to oppose a judge's reelection just as the company's appeal of a $50 million jury verdict was about to go before that court.

New York's highest court, the Court of Appeals, is beyond that pressure since we ended direct election to that bench in 1978 and shifted to a merit appointive system. But principal entry-level judicial positions require contested elections in which candidates must raise and spend money to achieve office. This issue has gained urgency after the recent U.S. Supreme Court decision in Citizens United vs. the Federal Election Commission, which held that the First Amendment prevents the government from limiting independent corporate and union expenditures in political campaigns, including judicial campaigns. As Associate Justice John Paul Stevens (pictured above) noted in his dissent, states cannot limit corporate contributions "even if they believe such limits to be critical to maintaining the integrity of their judicial systems." Modern Courts believes that requiring judges to recuse themselves when parties before them have made significant campaign contributions will avoid abuses and strengthen public confidence in the administration of justice. Kovner is the chair of the Fund for Modern Courts.