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This year should be the last that political parties in New York can use the state’s arcane convention system to nominate candidates for Supreme Court, the U.S. Court of Appeals for the Second Circuit ruled on Wednesday. The unanimous ruling in L�pez Torres v. New York State Board of Elections, 06-0635, written by Judge Chester J. Straub, upheld on all counts Eastern District Judge John Gleeson’s January ruling that the system violates the First Amendment rights of voters and candidates alike. The decision will be published Tuesday. The circuit also rejected requests from both the state Attorney General’s Office and the state Legislature for an additional year to devise a new nomination system. The ruling agreed with Judge Gleeson’s constitutional and factual analysis that the convention system, as presently structured, is a top-down apparatus totally controlled by party leaders, which tramples the associational rights of candidates lacking leadership support to run for Supreme Court. “All of the evidence presented, and accepted by the District Court, reduces to this bottom line,” Judge Straub wrote. “Through a byzantine and onerous network of nominating phase regulations employed in areas of one-party rule, New York has transformed a de jure election into a de facto appointment.” Judges Sonia Sotomayor and Peter W. Hall joined the opinion. Judge Gleeson had ordered that the state use primary elections to select Supreme Court candidates until the Legislature fashioned its own remedy. He had stayed his ruling through this year’s elections. Both the attorney general and the Legislature asked for an additional year in the event the circuit agreed with Judge Gleeson that the existing system is unconstitutional. But Judge Straub concluded that, “given the constitutional infirmity of New York’s judicial nominating process, [the convention system's] continuation cuts sharply against the public interest.” Moreover, he noted, the stay approved by Judge Gleeson, which leaves at least a year until any primary election would be required, “gives the Legislature sufficient time to consider and enact a new nominating scheme.” Reacting to the ruling, Frederick A.O. Schwarz of Cravath, Swaine & Moore, who argued the plaintiffs’ case before the Second Circuit for the Brennan Center for Justice, said, “This was a very important constitutional case. Now we can and should find a way to make significant improvements in the way New York state picks its Supreme Court judges. The ball is in the Legislature’s court.” But Andrew J. Rossman of Akin Gump Strauss Hauer & Feld, who represented the New York County Democratic Committee, suggested the fight was far from over. “We’re obviously disappointed,” he said. “We think it was wrongly decided and we’re considering further appellate options.” Mr. Rossman said those options are to seek en banc review by the full panel of the Second Circuit or to seek a writ of certiorari from the U.S. Supreme Court. “This [Second Circuit panel] has given greater deference to a district court judge than to the Legislature,” said Mr. Rossman. “It is the appropriate role of the Legislature to decide how its citizens are going to vote, especially votes within a political party.” New York is the only state in the nation that uses a convention system to nominate candidates for its 328 Supreme Court judgeships. Doubts about primaries Many of the groups that submitted amicus briefs supporting Judge Gleeson’s ruling expressed strong doubts about replacing the convention system with primaries. Grave concerns were expressed that primaries would force candidates to raise large sums of money from lawyers and potential parties with interests in cases that candidates might be called on to decide if elected. Similarly, concerns were raised that candidates would be forced to engage in the rough and tumble of campaigning where they would face pressure to comment on issues likely to come before them in violation of judicial ethics rules. Spokesmen for both Senate Majority Leader Joseph L. Bruno, R-Rensselaer County, and Assembly Speaker Sheldon Silver, D-Manhattan, said they had not seen the ruling as of yesterday afternoon and were unprepared to speculate on how, or if, the Legislature would address the Second Circuit’s decision. New York State Bar Association President Mark Alcott yesterday urged the Legislature to switch to an appointive system, in which justices would be chosen by the governor, or other elected officials, after having their qualifications screened by a non-political panel. “The conventions are now out, and I don’t think anybody desires an open primary system,” said Mr. Alcott, a partner at Paul, Weiss, Rifkind, Wharton & Garrison. “The judges don’t want it, and I don’t think the politicians want it either. What’s in it for them? So, let’s implement real reform, and merit selection is real reform.” Victor A. Kovner, a former New York City corporation counsel and chairman of the Fund for Modern Courts, said the ruling is ” a clarion call” for the Legislature to enact corrective legislation this year. “There is broad support for a revised convention system with meaningful access to all candidates,” Mr. Kovner said, “and for providing the delegates with the benefit a non-binding impartial evaluation of aspirants by independent, broadly based and diverse qualifications commissions.” The fund’s proposal closely hews to the recommendations of a commission appointed by Chief Judge Judith S. Kaye, which was headed by former Fordham Law School Dean John D. Feerick. The Feerick Commission in February recommended that the convention process be simplified by reducing both the number of delegates at conventions and the number of signatures needed to place them on the ballot. The commission also recommended a number of changes to insure that delegates have an independent opportunity to review candidates’ qualifications. Brooklyn District Attorney Charles J. Hynes, who has spearheaded a three-year probe of the way Supreme Court justices are chosen, however, called for the abolition of the convention system. “I would hope that the New York state Legislature will move swiftly to end forever the convention system,” he said, “which has for too long disenfranchised the voters in this state of their right to freely elect judges of the state Supreme Court, the most important trial court in this state.” Senate Judiciary Committee Chairman John A. DeFrancisco, R-Syracuse, called for an approach that could involve a primary election. Last year, before L�pez Torres was decided by Judge Gleeson, the Senate passed a bill which would permit Supreme Court candidates who did not garner the support of political leaders to mount a petition drive and force a primary election. “I think it’s time to pass my bill,” Mr. DeFrancisco said. “[It] makes the most sense in that it would allow for those who are not selected by the party leadership to do a primary, just like all the other judges.” Factual Findings In upholding Judge Gleeson, the Second Circuit pointed to a number of his factual findings as pivotal to his conclusion that only those rich in either political support or wealth could negotiate the existing convention system:

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