Judicial Convention System Challenged in Bench Trial
Daniel Wise
New York Law Journal
11-19-2004

Do county political leaders have a lock on who gets to run for Supreme Court, or are they merely taking the pulse of the party faithful?

Those extremes lay at the heart of nearly four hours of argument yesterday before Eastern District Judge John Gleeson over whether New York's convention system for nominating Supreme Court justices is constitutional.

Thirty-three states elect judges, but New York is the only one to use a convention system. Delegates elected in each of the state's 12 Supreme Court judicial districts choose a party's Supreme Court candidates. Many times, however, when only one slate of delegates is running, the delegates' names never appear on a primary ballot.

Different delegate slates are run within each Assembly district within a judicial district. For instance, 136 delegates are selected for the Democratic Party's nominating convention for the Second Judicial District, which covers Brooklyn and Staten Island. Those 136 delegates are divided into 12 sets, one for each Assembly district in the Second District. To get on the ballot, each set of delegates needs 500 signatures from within the Assembly district.

This arguably gives the party leadership a hold on the process, since their organizations can round up signatures more easily than a rival slate could on its own.

In the case before Judge Gleeson, the challengers, represented by the Brennan Center for Justice at New York University Law School, are seeking a preliminary injunction, claiming the system is so unwieldy and controlled from the top down that their First Amendment right to participate in the political process has been violated.

The system is invalid under the 1996 precedent set by the U.S. Court of Appeals for the Second Circuit in Rockefeller v. Powers, 78 F3d 44, they contend, because it poses insurmountable barriers to party members who want to see Supreme Court candidates chosen who do not have the blessing of their party's leaders. The plaintiffs claim a similar violation of the rights of "challenger" Supreme Court candidates who are bucking their party's leadership.

The plaintiffs in Lopes Torres v. New York State Board of Elections, 04-1129, are asking Judge Gleeson to order the state Legislature to repair the alleged constitutional defects within 90 days. Should it fail to act within that deadline, they are asking the judge to impose primary elections as the default option.

The challengers' claims were forcefully disputed by the New York County Democratic Committee, the Association of Supreme Court Justices of the State of New York and the New York Republican State Committee, all of whom intervened as defendants.

The precedents the plaintiff rely on, they argued, require only access for voters and candidates, not a right to win. They further contended there is no impediment to a Supreme Court candidate who is out of favor with a party's leadership running delegate slates. In some instances, they said, insurgent slates have won.

And the intervenors attacked the Brennan Center's claim that the process is entirely controlled by party leaders.

The lead lawyers for the two sides brought that conflict to the forefront of the argument.

'Closed Box'

Former City Corporation Counsel Frederick A.O. Schwarz, for the Brennan Center, delivered a blistering attack on the way party conventions function.

The convention is "a closed box," he said, where the delegates "rubber stamp" the decision of party leaders made elsewhere. Mr. Schwarz, who until recently was a partner at Cravath Swaine & Moore, has joined the Brennan Center as a senior counsel.

Jeremy Creelan, also with the Brennan Center, provided factual detail to Mr. Schwarz' critique. He said that insurgent delegates have been able to wrest control of a convention away from its leader only twice since the convention system was created 86 years ago.

Moreover, Mr. Creelan cited experts on convention systems who said year in and year out the judicial candidates who emerge from the convention are known in advance. According to those experts, he said, "the real action" is not at the convention but in telephone calls between the party leader and the district leaders who nominate convention delegates.

Mr. Creelan also cited testimony from the New York County Democratic leader, Assemblyman Herman D. Farrell, in a different lawsuit, in which he said the convention system "works best for me" because it provides "a better chance to control what goes on."

Mr. Farrell was also quoted as saying, though he "can't make" a candidate, he could "surely block" one.

Opposing View

Andrew Rossman, representing the New York County Democratic Party, said that far from ramming candidates through the convention, party chairmen "consult with district leaders to balance a ticket that will benefit the whole party."

Mr. Rossman and his firm, Akin Gump Strauss Hauer & Feld, are representing the New York County Democratic Committee pro bono.

Mr. Farrell's comments notwithstanding, Mr. Rossman said there were at least a half dozen instances in which Supreme Court candidates who were not favored initially by Mr. Farrell won nominations because of the support they were able to garner from delegates.

One instance cited by Mr. Rossman involved Justice Phyllis Gangel-Jacobs. Mr. Farrell had publicly opposed Justice Gangel-Jacobs for years, but ultimately she was able to win enough delegate support to force Mr. Farrell to support her, Mr. Rossman said.

Similarly, Robert Alan Muir, who represented the state Republican Party, said there have been six instances in which judicial candidates won in the Second Judicial District despite not being favored by the Brooklyn Democratic leader, Assemblyman Clarence Norman.

Pointing to the factual conflict between the two sides' claims, Judge Gleeson asked a question that must have given the plaintiffs cheer and the defendants pause.

The county leaders could best resolve the dispute over their role, Judge Gleeson noted, so why should he not draw an adverse inference from the intervenors' failure to produce leaders.

"Wasn't the easiest thing in the world to get to the bottom [of the dispute] to put Farrell on?" he asked.

Judge Gleeson, who was sparse in questioning, then followed with another question that cut the opposite way.

"If the county leader could be voted out of office," he asked, "did it make any difference" which side's view was correct?

- Daniel Wise can be reached at dwise@amlaw.com.


Questions and Answers about
Judicial Independence
Brennan Center For Justice

LINK

Q: What Is Judicial Independence?

A: Judicial independence is the freedom we give judges to act as principled decision-makers. The independence is intended to allow judges to consider the facts and the law of each case with an open mind and unbiased judgment. When truly independent, judges are not influenced by personal interests or relationships, the identity or status of the parties to a case, or external economic or political pressures.

Q: How Is Judicial Independence Achieved?

A: The U.S. Constitution protects the independence of federal judges. Federal judges are appointed for life. They can be removed only for "treason, bribery, and other high crimes and misdemeanors." In addition, federal judges' salaries cannot be reduced while they are in office. As a result, the decisions of federal judges cannot be influenced by the threat of losing their jobs or income.

State judges, on the other hand, usually do not have such protection, even under state constitutions. Most state judges do not enjoy life tenure, and approximately 80% of them must stand for some form of popular election. Elected judges must win support from voters and therefore can be susceptible to political pressure. Their independence relies on the character of the judges themselves and policies that respect the role of judges in our democracy.

Q: Why Is Judicial Independence Important?

A: In democracies, disputes are supposed to be settled by independent judges who make impartial decisions. With independence, judges are in a position to ensure that neither legislative majorities, nor overzealous or corrupt public officials, violate the rights of even the weakest among us. Moreover, judicial independence inspires respect for the courts, which is essential to the judiciary's power to hand down decisions that are sometimes politically unpopular. Deeply controversial decisions on abortion, prayer in school, and the death penalty are widely obeyed because the public perceives that the outcomes are not "rigged," but are the result of a process in which independent judges strive faithfully to apply the laws of the land to specific cases.

Q: How Is Judicial Independence Threatened?

A: Judicial independence is now threatened in a number of different ways. First, the use of litmus tests undermines judicial impartiality. A litmus test is a standard that qualifies or disqualifies potential judges on the basis of how they would rule in a particular case or type of case. For example, one common litmus test asks potential judges how they would rule in death penalty cases. But if judicial candidates make commitments in order to pass a litmus test, they will likely feel pressure to keep the promise when the issue comes up, instead of applying the law in a fair and neutral way.

Second, the election of state judges may encourage them to behave more like politicians than neutral arbiters of justice. Like politicians, judges facing election must raise increasingly large sums of money to run campaigns. Much of this money may come from organizations or individuals that appear regularly in court, such as trial lawyers or business groups. Judges may then feel pressure to decide cases in ways that help their financial supporters.

Third, judicial independence can flourish only as long as society has confidence in the impartiality of judges. Without faith that judges will for the most part act neutrally and fairly, the public has no reason to defend the judiciary as a separate and powerful third branch of government. Such faith can be undermined when women and minorities are excluded from the federal or state bench. When members of the public do not see a representative court system, doubts naturally arise about the ability or willingness of judges to protect the rights of everyone equally and about the fairness of the system as a whole. Many of the groups that have been and are expected to be the strongest supporters of an independent judiciary then begin to question its importance and to relax their vigilance in protecting unconstrained judicial decision-making.

Q: How Can the Threats to Judicial Independence Be Avoided?

A: The Constitution does not forbid the President and Senate from asking probing questions about a federal judicial nominee?s intelligence, judicial philosophy, temperament, and commitment to fairness and impartiality. However, questioning should be designed to test whether nominees will conduct themselves as judges in a manner that commands respect and trust. Nominees should not be asked how they would decide particular cases and should not be disqualified for failure to accept the perspective of the Senate majority party. Nor should nominees have confirmation hearings delayed because of their race or gender or because of stereotyped beliefs about how women or minority judges will decide cases.

State judges face a tougher time avoiding threats to their independence. States must do everything in their power to protect judges from overly politicized contests for office. Public financing of judicial elections might help to eliminate economic pressures, for example. The press and the public should also insist on fair and honest campaign advertising.

Finally, calls for the impeachment of judges whether federal or state - should be grounded on evidence of misconduct inconsistent with the requirements of the office. Judges are required to issue decisions in controversial cases and to apply the law even when the result will be unpopular. Elected officials, members of the press, and other opinion leaders show no understanding of or respect for our constitutional system when they threaten judges for ideological purposes.

Q: Is Judicial Independence a Partisan Issue?

A: Judicial independence can and should be supported by both the left and the right, Democrats and Republicans alike. Two U.S. Supreme Court Justices make this clear in recent statements about the importance of judicial independence. Justice Stephen Breyer, a Clinton appointee, stated: ?We developed a system of protecting human liberty [of which] . . . independent judges are a necessary part . . . . [I]f that independence is seriously eroded, it will be hard to protect those things that this country was based upon.? Justice Anthony Kennedy, a Reagan appointee, agreed: "Our system presumes that there are certain principles that are more important than the temper of the times. And you must have a judge who is detached, who is independent, who is fair, who is committed only to those principles, and not public pressures of other sort." Clearly, both conservatives and liberals can agree that judicial independence is one of the most important principles of our democracy.