Federal court upholds judge selection ruling

Appeals Court agrees process for picking state Supreme Court judges is unconstitutional

By MICHELE MORGAN BOLTON, Staff writer

ALBANY — A federal appeals court agreed today that the way state Supreme Court judges are selected in New York is unconstitutional.

In an 82-page decision, justices in the Second Circuit Court of Appeals rejected an appeal by political leaders and the state Board of Elections of the ruling that also orders voters to be allowed to pick Supreme Court candidates directly in political primaries, rather than the age-old convention system.

There, political operatives make the decisions based, most often, on back-room, insider cross-endorsement deals and patronage.

In today’s decision, justices wrote, “This case requires us to peer inside New York State’s political clubhouses and determine whether party leaders have arrogated to themselves a choice that belongs to the people.”

“We hold that the district court acted within its allowable discretion,” they concluded, ruling, among other points, that the convention process “is not per se constitutional” and “imposes severe burdens on the associational rights of voters and candidates.”

Finally, they said, U.S. District Judge John Gleeson was within his discretion to rule that nominations be settled by primary election until such time as the Legislature enacts “corrective legislation.”

In January, Gleeson, of the Eastern District, wrote, “The plaintiffs have demonstrated convincingly that local major party leaders — not the voters or the delegates to the judicial nominating conventions — control who becomes a Supreme Court justice and when.”

His ruling backed the Brennan Center for Justice at the New York University School of Law, which sued the state Board of Elections in March 2004 over the selection process.

Gleeson said the by-product of the current system, “is an opaque, undemocratic selection procedure that violates the rights of the voters and the rights of candidates who lack the backing of local party leaders.”

Political insiders have predicted that an open primary process for Supreme Court seats would result in all candidates having to spend a lot more money. Given the legal and ethical restrictions that prohibit judges from most political activities, these insiders suggested that only independently wealthy people will be able to afford to run for the Supreme Court.

Gleeson rejected that argument in his January decision.

“Although it is of course true that persuading voters in a competitive race can be an expensive proposition … that expense follows from the choice to have an elected judiciary. … A state may not choose to have elections and then design procedures to render them uncompetitive at the critical stage because having candidates communicate with voters is too costly or the fundraising it requires too corrupting.”

This is good news for us all, including the judical candidates. Now maybe we will have a real choice in candidates not just the ones the Parties shakedown for money to get the Party endorsements.