Judicial Selection

In January 2006, U.S. District Court Judge John Gleeson held in Lopez Torres v. New York State Board of Elections that New York State’s current judicial convention system which nominates candidates for Supreme Court justice was unconstitutional. He wrote that “(t)he choice of a permanent remedy for this constitutional violation does not fall to me, but rather to the legislature of the New York State.”As a temporary remedy, the court imposed direct primary elections, “lasting only until the legislature enacts a new method of electing Supreme Courts Justices…”

In August 2006, the United States Court of Appeals for the Second Circuit unanimously affirmed Judge Gleeson’s decision and denied the legislature’s request to extend the stay granted by Justice Gleason beyond the 2007 elections. As a result, the legislature either will have to act to remedy the constitutional violation or default to a system of direct primary elections.

The Fund for Modern Courts believes that the legislature must act, and consider all possible remedies now by holding joint legislative hearings on the selection process for the office of Supreme Court justice.

Modern Courts believes that New York should amend its Constitution to adopt a commission-based appointive system. But adoption of a commission-based appointive system is a time consuming process and there is an immediate need to address the present crisis in the elective system. Direct nominations through party primaries of Supreme Court justices threatens to further undermine the confidence of the public, which overwhelming believes that campaign contributions have an effect on judicial decisions.

Modern Courts also believes that if the legislature permits direct nominations through party primaries to take place, it should enact a system of public financing for those elections. In such a system, candidates opting for public financing could be subject to contribution limits, campaign expenditure limits and more extensive financial disclosure requirements.

But should the legislature decide to reform the convention system, Modern Courts urges the adoption of legislation that also establishes independent judicial qualification commissions because reforms of the convention system alone are not sufficient to address the present crisis in the elective system. The legislation should be consistent with the following criteria:

Independent Judicial Qualification Commissions:

The legislation should create independent judicial qualification commissions in each judicial district to review the qualifications of candidates for election to the Supreme Court in each judicial district.
The membership of the proposed qualification commissions should be appointed by governmental officials representing the three branches of government and should include non-governmental organizations, such as law schools, community organizations, and bar associations.
In making appointments to such commissions, each appointing authority should give consideration to achieving a broad representation of the community, including geographic, racial, ethnic and gender diversity.
The legislation should require that uniform rules to govern the procedures and proceedings of the commissions be established and an appropriate state-wide body be created to enforce those procedures.
The legislation should provide that all communications to the commissions, their proceedings, and all applications, correspondence, interviews, transcripts, reports and all other papers, files and records of the commissions shall be confidential and shall not be made available to any person except as otherwise expressly provided in the legislation or by regulation or rule.
The legislation should provide that all candidates intending to seek nomination at a judicial district convention for the position of Supreme Court justice should submit their names, and the name of the judicial convention or conventions at which they intend to seek nomination, to the independent judicial qualification commission in the judicial district in which the convention or conventions will take place.
The legislation should require each commission to evaluate candidates to determine which candidates are most qualified to serve as Supreme Court justices. The criteria for evaluation shall include, but not be limited to, professional ability, work ethic, character, independence, integrity, reputation for fairness, lack of bias, temperament, including courtesy and patience, and legal and academic experience and achievement.
In making its recommendations, each such commission also shall give consideration to the importance and desirability of judicial candidates who reflect a broad cross-section of the community, taking into account geographic, racial, ethnic and gender diversity.
The legislation should provide that each commission publish a report listing the names of all candidates to be considered by such convention who were reviewed by such commission and the names of all candidates to be considered by such convention who did not submit to commission review for each Supreme Court justice position under consideration.
The legislation should provide that from the pool of candidates to be considered at such convention for each vacancy, the three (3) candidates found by the commission to be most qualified to serve as a Supreme Court justice shall be recommended.
The legislation should provide that where a sitting Supreme Court justice is seeking re-election and the commission, after investigating, evaluating and interviewing such justice, has found such justice to be “highly qualified,”the commission should have the option to recommend only that justice for nomination at the judicial district convention or conventions at which he or she will be considered.
The legislation should provide that copies of such report shall be provided to all delegates to such convention and to the public in advance of such convention.

Reform of the Convention System

Reform of the convention system must include independent judicial qualification commissions based upon the principles described above.
The legislation should reduce the number of delegates to the judicial conventions because under the current formulas developed by the political parties, the large number of delegates and alternative delegates to the convention in some districts prevents a challenger candidate from effectively running and electing his/her own slate of delegates and makes it difficult, if not impossible, for a candidate not supported by the party leadership to lobby delegates.
The legislation should reduce the number of signatures required on delegate designating petitions because the current law requires that such petitions include valid signatures from 500 party members in each assembly district, which require a challenger candidate to gather tens of thousands of signatures drawn equally from party members in the assembly districts within the judicial district. This requirement effectively deprives candidates not supported by party leaders of the ability to elect delegates.
The legislation should give judicial candidates the right to address judicial conventions in order to present their candidacy to the judicial delegates who were supposedly evaluating judicial candidates.

Public Hearings on the Selection of New York State Supreme Court Justices
Held before the New York State Assembly Standing Committee on the Judiciary

As you well know, Judge Gleeson wrote that “[t]he choice of a permanent remedy for this constitutional violation does not fall to me, but rather to the legislature of the New York State.” And that his temporary remedy – direct primaries for Supreme Court justices – should last “only until the legislature enacts a new method” for selecting nominees for the Supreme Court.

And, when the Second Circuit unanimously affirmed Judge Gleeson’s decision and denied the legislature’s request to extend the stay granted by Justice Gleason beyond the 2007 elections, that court concluded – “The Legislature has pledged to ‘move as expeditiously as necessary to devise a workable solution.’ We take it at its word.”

Your decision to conduct these hearings demonstrates the type of responsible leadership the federal courts expect.

First, Modern Courts reasserts its long held belief – held for more than 50 years – that the best alternative for judicial selection is an amendment to New York’s Constitution that would establish a qualification commission-based appointive system. But adoption of a Constitutional amendment takes a minimum of three years, and does not address the present crisis in our system of nominating candidates for the State Supreme Court. Before 2010, the terms of roughly eighty State Supreme Court justices will expire and they will face re-election before any constitutional change could become effective. In 2007 alone, 24 sitting justices will face the same prospect that confronted those justices facing re-election in 2006, before Judge Gleeson issued the stay of his decision, namely requests from county leaders to raise large sums of money, in some instances hundreds of thousands of dollars, in order to avoid primaries.

We deeply believe that direct nominations through party primaries threatens to undermine confidence in the administration of justice by the public, which overwhelming believes that campaign contributions have an effect on judicial decisions. But if the legislature, nonetheless, permits direct nominations through party primaries to take place, it should enact a system of public financing for those elections. In such a system, candidates opting for public financing could be subject to contribution limits, campaign expenditure regulation and more extensive financial disclosure requirements.

A credible alternative to nominations through party primaries is reform of the judicial convention system. And if the legislature decides to reform the convention system, Modern Courts urges the adoption of legislation that also establishes independent judicial qualification commissions to evaluate candidates and report to the judicial delegates because reforms of the convention system alone are not sufficient to make needed improvements in an elective system. Such legislation should include the establishment of independent judicial qualification commissions in each judicial district to evaluate the qualifications of candidates for election to the Supreme Court. The members of these commissions should be appointed by governmental officials from the three branches of government, and should provide for diversity with representation from non-governmental organizations, such as law schools, well established community organizations, and bar associations. Most importantly, the legislation should provide that as to each vacancy, only the three candidates found by the commission to be the most qualified to serve a Supreme Court justice should be recommended. Where the candidate is an incumbent seeking re-election, the commissions should have the option to recommend only the incumbent, if found well qualified. The commission’s report would not be binding upon the delegates, but would provide them with the benefit of outside scrutiny from an independent source

Modern Courts has supported Assembly Bill A.00007, sponsored by Chair Weinstein and members of the committee. That bill created “judicial candidate screening panels” with many similar qualities to the independent judicial qualification commissions supported by Modern Courts. We respect the content and intent of that bill, have previously supported its provisions, and appreciate the inclusiveness of that bill in its embrace of all the courts. Now, however, because of the crisis in the system of selecting Supreme Court candidates, we recommend a bill that addresses the process only for Supreme Court candidates, and that is separate and distinct from the other reforms sought in that bill. Although those reforms can be made part of broader legislation, it is urgent to address the way we nominate Supreme Court justices, the problem that must be resolved as soon as possible.

The legislature can also address the infirmities Judge Gleeson identified by making judicial nominating conventions constitutional more open and democratic with provisions for the election of judicial delegates long before conventions, reducing the number of delegates to each judicial convention, reducing the number of signatures required on delegate designating petitions, and providing the delegates with the opportunity to consider the report of the independent judicial qualification commission and the opportunity to hear each candidate address the conventions. Such reforms will address the principal issues raised by the federal courts in Lopez Torres .

In response to our legislative survey, a lmost all the candidates for the New York State legislature who responded support some or all of the reforms suggested above, many of which are based upon the Feerick Commission recommendations.

Judicial selection reform has always been challenging and we hope that both houses of the legislature will work together quickly to make the reforms necessary to ensure an independent, fair, efficient and diverse judiciary in the election cycle of 2007 which begins in the very near future.

Respectfully Submitted,

Victor A. Kovner

Chair, Committee for Modern Courts

Testimony of Victor A. Kovner Chair, Committee for Modern Courts
Public Hearings on the Selection of New York State Supreme Court Justices
Held before the New York State Senate Standing Committee on the Judiciary

On behalf of Modern Courts, I want to thank you and the Committee for providing me with the opportunity to present testimony about the constitutional crisis that New York State now faces as a result of the decisions in Lopez Torres v. New York State Board of Elections. And I also want to thank you Mr. Chairman and acknowledge your early identification of flaws within the judicial convention system that were subsequently found unconstitutional by the federal courts.

As you well know, Judge Gleeson wrote that”[t]he choice of a permanent remedy for this constitutional violation does not fall to me, but rather to the legislature of the New York State.” And that his temporary remedy – direct primaries for Supreme Court justices – should last “only until the legislature enacts a new method” for selecting nominees for the Supreme Court.

Your decision to convene these hearings demonstrates the type of responsible leadership the federal courts expect.

First, Modern Courts reasserts its long held belief – held for more than 50 years – that the best alternative for judicial selection is an amendment to New York’s Constitution that would establish a qualification commission-based appointive system, and we are encouraged that Governor Spitzer has recently announced his intention to propose such a constitutional amendment.

But adoption of a Constitutional amendment takes a minimum of three years, and does not address the present crisis in our system of nominating candidates for the State Supreme Court. Before 2010, the terms of roughly eighty State Supreme Court justices will expire and they will face re-election before any constitutional change could become effective. In 2007 alone, 24 sitting justices will face the same prospect that confronted those justices facing re-election in 2006, before Judge Gleeson issued the stay of his decision, namely requests from county leaders to raise large sums of money, in some instances hundreds of thousands of dollars, in order to avoid primaries. And I am told, there are already committees raising substantial funds for the re-election of some sitting judges.

A credible alternative to nominations through party primaries is a judicial convention process that addresses the constitutional flaws articulated by the federal courts. But if the legislature decides to reform the convention system, it is essential that the legislation also establishes, on a non-binding basis, independent judicial qualification commissions to evaluate candidates and report to the judicial delegates because reforms of the convention system alone are not sufficient to make needed improvements in an elective system. Such legislation should include the establishment of independent judicial qualification commissions in each judicial district to evaluate the qualifications of candidates for election to the Supreme Court. The members of these commissions should be appointed by governmental officials from the three branches of government, and should provide for diversity with representation from non-governmental organizations, such as law schools, chambers of commerce, well established community organizations, and bar associations.

Most importantly, the legislation should provide that as to each vacancy, only the three candidates found by the commission to be the most qualified to serve a Supreme Court justice should be recommended. Where the candidate is an incumbent seeking re-election, the commissions should have the option to recommend only the incumbent, if found well qualified. While all judicial candidates should be required to submit their qualifications to the appropriate commission, I want to emphasize that the commission’s report would not be binding upon the delegates, but would provide them with the benefit of outside scrutiny from an independent source.

As you know, Modern Courts surveyed the candidates for this year’s legislative elections. One of the questions we asked was whether the candidate would support independent judicial qualifying commissions, as I just described. Ninety-five per cent of those who answered this question support the establishment of such commissions. Some candidates qualified their affirmative answers with the concerns about the qualifications of the commission members, the composition and structure of the commission. These concerns must be addressed, and Modern Courts is confident that the legislature can succeed in creating such commissions, and we stand ready to work with you on a system that meets with your concerns.

Independent Judicial Qualifying Commissions would also serve the voters, your constituents, who when faced with the choice of voting for a judicial candidate in an open primary would have limited, if any information, beyond paid political advertisements, as to who the qualified candidates are. Independent Judicial Qualifying Commissions would provide the public with an important and practical resource in determining, at a minimum, whether the candidate has been deemed qualified by those with knowledge of the court system who are also members of their community. Open primaries, without Independent Judicial Qualifying Commissions and without a system of public financing, will only serve to support those who can afford the expense of a political campaign. The testimony given by a various individuals and organizations before the Assembly Standing Committee on the Judiciary demonstrates a clear preference for the establishment of Independent Judicial Qualifying Commissions — whether we have open primaries or a reformed convention process for selecting candidates. The voting public benefits from information developed independently from the candidate’s campaign. Additional reforms such as those suggested by the Feerick Commission – which include voter education – and the establishment of independent judicial qualifying commissions will enhance the voters’ ability to make informed choices. Finally, Independent Judicial Qualifying Commissions are a mechanism for ensuring that judicial candidates are not only well qualified, but that they reflect the broad diversity of our state, which enhances public confidence in the administration of justice.
The legislature can also address the constitutional infirmities Judge Gleeson identified by making judicial conventions constitutional more open and democratic with provisions for the election of judicial delegates long before conventions, reducing the number of delegates to each judicial convention, reducing the number of signatures required on delegate designating petitions, and providing the delegates with the opportunity to consider the report of the independent judicial qualification commission and the opportunity to hear each candidate address the conventions. Such reforms will address major issues raised by the federal courts in Lopez Torres.

In response to Modern Courts’ legislative survey in the Fall of last year, almost all the candidates for the New York State legislature who responded support some or all of the reforms suggested above, many of which are based upon the Feerick Commission recommendations.
Judicial selection reform has always been challenging and given the current crisis we urge both houses of the legislature to work together quickly to make the reforms necessary to ensure an independent, fair, efficient and diverse judiciary in the election cycle of 2007 which unfortunately has already begun.

Respectfully Submitted,

Victor A. Kovner
Chair, Committee for Modern Courts

By Barry A. Bohrer, Chair, Fund for Modern Courts

It is deeply disturbing to those who care about New York’s justice system to read that when asked recently if the Senate would return before January to hold confirmation hearings for the next Chief Judge of the State of New York, Republican Majority Leader John Flanagan said, “I don’t see any reason why we would do that.” It is astonishing that the Majority Leader of the state Senate says he sees no reason why the Senate should obey the law, and does not understand that the Judiciary, the third branch of government, needs a Chief Judge to be able to fulfill its vital responsibilities to enforce the rule of law on behalf of all New Yorkers.

The Fund for Modern Courts, an organization whose goal is to make the courts better for all New Yorkers, believes that there are at least three reasons for the Senate to act: [Read more…] about Justice Can’t Wait