During a breakfast address Friday at New York Law School, Corporation Counsel Michael A. Cardozo asked if anyone in the audience could remember the names of two judicial candidates they voted for in the last primary or general election. It should have been easy, since there were at least four and as many as 10 contested judicial slots to fill last year.
But no one stood � not a single person in a crowd of 150 that included a prosecutor, a judge, law professors, city lawyers, government officials and private practitioners acknowledged recalling two candidates for whom they cast a ballot.
“If no one here can remember the names of judicial candidates for whom they voted, then presumably the general public doesn’t remember either,” Mr. Cardozo said. “In fact, I suspect that many of you � like many in the general voting public � probably didn’t vote for judicial candidates at all.”
Mr. Cardozo used the opportunity to, once again, plug a major issue on his agenda and that of his boss, Mayor Michael Bloomberg: judicial selection reform.
“There has been a terrible, frankly frightening, consequence to this voter ignorance and non-participation in the determination of the people who will become our judges,” Mr. Cardozo said. “The decision on who will become a judge has been left solely in the hands of a small group of people: county political leaders.”
Eastern District Judge John Gleeson recently held in Margarita Lopez Torres v. New York State Board of Elections that the convention system for selecting Supreme Court candidates violates the rights of both voters and candidates, and ordered the state to permit primary elections in judicial races. However, many reformers say that would only exacerbate the problem. Judge Gleeson’s order has been stayed pending an appeal before the U.S. Court of Appeals for the Second Circuit (NYLJ, March 6).
Mr. Cardozo said the Gleeson decision and growing evidence that the system for choosing judges in New York is suspect at best present a few options: holding out for a merit selection process, although there is no indication the state Legislature is close to scrapping the elective system; accepting an even more political system if Judge Gleeson is affirmed and the state goes with a primary election system; accepting the status quo if Judge Gleeson is reversed; or making the admittedly flawed convention system work as well as possible.
“The mayor and I vote for this latter solution” Mr. Cardozo said.
Mr. Cardozo called for a law that would establish independent judicial qualification committees that would identify the three most qualified candidates for each judicial position. He also said the flaws identified by Judge Gleeson could potentially be addressed by “highly technical” legal reforms that would broaden the pool of convention delegates. Finally, Mr. Cardozo said there is nothing, “other than political inertia,” to prevent the parties from reforming themselves.
“They can pass internal rules creating independent screening panels and providing that they will only nominate for Supreme Court justice those found qualified by those panels,” Mr. Cardozo said. “Unfortunately, recent experience offers ample proof of why we should not wait for parties to correct the problem, and why we must move forward with a legislative solution now.”
Although the Bloomberg administration has been calling for judicial selection reform for several weeks, Mr. Cardozo’s speech Friday marked the first time the mayor’s office has formally endorsed the Feerick Commission proposal for revamping the convention system.
The commission, headed by former Fordham University Law School Dean John D. Feerick, called for universal screening of judicial candidates. Chief Judge Judith S. Kaye also supports that proposal.
While Mr. Cardozo’s focus is largely on how to work within the existing framework to establish a better judicial selection process in New York, a unique symposium from 9 a.m. to 5:30 p.m. April 7 at Fordham Law School will take a broad, national look not at whether the appointive system is superior to the elective system, but on how to devise the best possible appointive system.
Norman L. Greene, a partner at Schoeman, Updike & Kaufman in Manhattan and organizer of “Rethinking Judicial Selection: A Critical Appraisal of Appointive Selection of State Court Judges,” said the nationally focused symposium was conceived about two years ago.
Mr. Greene said it is clear that an appointive system is not a panacea, as evidenced by the fact that some experts and observers have criticized what is often touted as the New York model for judicial appointment, the Court of Appeals. Critics have complained that the Court of Appeals selection process is flawed by its secrecy and by the fact that the governor who appoints the judges also appoints several members of the nominating commission. In recent years, the commission has had to recruit applicants, in part because several Appellate Division justices and other potentially qualified individuals have assumed the results are preordained.
“An appointive system by itself tells you nothing about whether it is a good system, absolutely nothing,” Mr. Greene said. “But almost all of the good government groups . . . support an ‘appointive’ system. If we start with the assumption that an appointive system is the way to go, how do we develop a good appointive system? To say that you need a diverse, independent, credible body making these decisions doesn’t make it so. What are the mechanics?”
Mr. Greene will be joined by judges, academics and other experts from New York, New Jersey, Pennsylvania, North Carolina, Iowa, Idaho, Alabama, Colorado, Arizona, Nebraska, Kansas, Wyoming, Oklahoma, New Mexico and Texas as they discuss and debate classic and new models for judicial appointment.
The panel includes five current or former judges, academics, political scientists and experts on judicial conduct. All the participants have agreed to submit papers on their position, and all of the papers will be published in an upcoming edition of the Fordham Urban Law Review, Mr. Greene said.
“Arizona has had an appointive system since the early 70s,” Mr. Greene noted. “What do they like about it, what can they improve? We can learn from that in trying to devise a good appointive system. That is what we hope to do, to take the knowledge of the people who have had experience with it.”
The program is funded in part by a Carnegie Corporation grant and is co-sponsored by the American Judicature Society, The Constitution Project, the League of Women Voters of New York State Education Foundation, the Louis Stein Center for Law and Ethics at Fordham Law School and the Fund for Modern Courts. It is free and open to the public. For more information visit http://law.fordham.edu/cle.htm or e-mail firstname.lastname@example.org.
� John Caher can be reached at email@example.com.