Policy Statement on Judicial Selection 2006

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.

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