Public Policy Relating to Judicial Selection

Under the existing Constitution, Justices of the Supreme Court, the major trial court of the state, are elected after being nominated at judicial conventions organized by political parties. Most other judges in the state are elected, some after a primary process, but many others just nominated by a political party. However, Judges of the Court of Claims are appointed by the Governor, with Senate confirmation, and judges of New York City’s Family Court and Criminal Court are appointed by the Mayor. Because all of these methods of selection are mandated by the Constitution, they can only be changed by a constitutional amendment.

Modern Courts has long held the view that the election of judges must be replaced by a system that would reduce the direct role of party politics in the selection process and take the influence of money out of judicial elections, help ensure that the best qualified candidates are chosen, and help to protect the independence of the judiciary. We have taken this position because of our concern that judicial elections require candidates to conduct political campaigns and to raise money which we believe undermines public perception about both judicial independence and judicial excellence. For example, in its 2006 report to New York State’s Chief Judge Judith S. Kaye, the Commission to Promote Public Confidence in Judicial Elections found that 94 % of voters believe campaign contributions have a little, some or a great deal of influence on the way judges decide court cases; 45% of New York judges polled thought that campaign contributions influence judicial decisions to some degree.

Therefore, Modern Courts believes that the Constitution should be amended to provide for the appointment of all judges and justices of courts of record by means of a “qualification commission based appointive system.” This system would provide for the nomination of a limited number of well-qualified individuals for a judicial vacancy by a commission like the Commission on Judicial Nomination currently used to select New York’s Court of Appeals judges. The list of nominees would be presented to an accountable public official and/or body, which would be responsible for and required to make an appointment from the list within a limited time period. The choice should be subjected to a confirmation process.

Thanks to the voters who approved a constitutional amendment in 1979, which must be preserved, the judges of the Court of Appeals, New York’s highest court, are appointed by the Governor after being recommended by the constitutionally created Commission on Judicial Nomination, a diverse, broad-based committee composed of lawyers and non-lawyers, whose members are appointed by executive, legislative, and judicial officials. Appointments to the Court of Appeals are subject to confirmation by the State Senate. As a result of this amendment, New York voters took partisan politics out of the selection system for the State’s highest court.  This amendment prevented the defeat of independent and experienced sitting judges, the negative targeting of judges by special interest groups, and the influx of money in judicial campaigns, as has occurred in many states that elect their highest court judges.

The logic and common sense of the voters in 1979 strongly suggests that it is time to amend the Constitution to provide for the appointment of all other justices and judges of courts of record by means of a qualification commission-based appointive system.

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