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ALBANY – The New York State Bar Association yesterday faced a seemingly hostile Senate panel when the group called for an end to judicial elections and the establishment of a “merit” selection process. Senators bluntly challenged State Bar President Mark H. Alcott’s premise that the elective system is an inherently inferior way to choose judges, and questioned whether a merit selection system that mandates judicial diversity, as the bar’s proposal does, is still strictly a merit system. Senate Judiciary Committee Chairman John A. DeFrancisco, the Syracuse-area Republican who convened yesterday’s hearing, suggested that under an appointive system “political elites” would replace the political party officials who determine who gets nominated. Senator George H. Winner Jr., R-Elmira, said there is no escaping the fact that under the bar’s proposal pure merit would sometimes be trumped by race and gender. And Senator Serphin R. Maltese, a Queens Republican, pondered whether, under the bar’s diversity requirement, an Asian-American would have standing to challenge the selection of a black judge. But Mr. Alcott, a partner at Paul, Weiss, Rifkind, Wharton & Garrison, stressed that the federal court decision in Lopez Torres v. New York State Board of Elections “has given New York a once-in-a-generation opportunity to bring about meaningful reform of its unfair, undemocratic, unconstitutional judicial election system.” Lopez Torres, decided last year by the U.S. Court of Appeals for the Second Circuit, held that New York’s method for selecting candidates for Supreme Court is unconstitutional because it leaves all the power to designate candidates in the hands of political operatives. The state can comply with that decision by allowing open primaries, beginning this year, or reforming the convention process so that candidates who do not have the blessings of the party leaders have at least some avenue to the ballot. But Mr. Alcott urged against any sort of Band-Aid solution that tweaks the existing “sham” system and fails to undertake major, structural reforms. He is concerned that the need to quickly comply with Lopez Torres will lead to a minor reform, rather than the drastic restructuring the state bar has advocated for over a decade. “True reform requires more than merely patching up the unconstitutional convention system,” Mr. Alcott said. “True reform requires nothing less than a constitutional amendment implementing a merit selection process for judges.” Mr. Alcott disputed the allegations of some minority bars that blacks, Hispanics and other minorities fare far better under an elective system. He acknowledged that former Governor George E. Pataki never appointed a minority to the Court of Appeals and left the four appellate divisions almost entirely white, but said that “abysmal” record should not serve as an indictment of merit selection. Mr. Alcott said the plan proposed by the state bar would require racial, ethnic and cultural diversity on the nominating commissions, and would include a provision requiring the appointment of minorities to the bench. He stopped well short of calling for any sort of racial or gender “quota,” but still faced skepticism from senators concerned with how the state would enforce the diversity requirement. The state bar president was among several attorneys, bar leaders and judges who appeared yesterday before Mr. DeFrancisco’s panel. Mr. DeFrancisco is pushing a bill that would largely retain the convention system, while also ensuring that those who do not have the blessings of the party leadership could petition for a spot on the ballot. Supporting elections Joseph P. Awad, president of the New York State Trial Lawyers Association, opposed an appointive process, arguing it would “take away the power from the people and replace it exclusively in the hands of a few.” He said judicial elections are central to American democracy, and have been a part of the state Constitution since 1846. “We also strenuously object to the term ‘merit selection’ . . . and the implication that judges that attain their status by popular vote are somehow necessarily less capable than judges that have attracted the attention of participants in an appointments process,” he said. Mr. Awad, however, said that if open primaries result from Lopez Torres, the state should finance judicial campaigns. “Open primaries supported by full public campaign financing for judicial elections would bring New Yorkers the healthiest, most democratic alternative,” Mr. Awad said. Robert E. Lahm, president of the New York State Academy of Trial Lawyers, also supports public campaign financing and also opposes a constitutional amendment. He supports open primaries, and contended that the appointive system tends to “favor large law firms with the resources to underwrite participation by their partners on selection committees.” “It is axiomatic that larger law firms most typically represent corporate banking and insurance interests and, thus, the defense,” Mr. Lahm said. New York City Corporation Counsel Michael A. Cardozo, said that both he and Mayor Michael Bloomberg agree with the state bar that “in the ideal world the state would amend its Constitution to provide for merit appointment of judges.” But he noted that opposition to that proposal is substantial – neither house of the Legislature seems especially receptive – and in any case “we cannot afford to wait the four years” it could take to approve and ratify an amendment. “We must put our differences aside and come together to achieve reform right now,” Mr. Cardozo said. “Unless we act immediately, we will have open primaries this September and with it judgeships for sale to the highest bidder. . . . The good solution, and in fact the best solution today, is to reform the convention system, and to do it now.” Mr. Cardozo would reduce the number of convention delegates to “ensure a meaningful convention and to prevent the extraordinary control party leaders now wield.” He would also make it easier for maverick delegate to be elected to the convention and would grant potential candidates reviewed by a qualification commission the right to address the convention. John Caher can be reached at [email protected]

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