Testimony of Victor A. Kovner – November 15, 2006

Public Hearings on the Selection of New York State Supreme Court Justices
Held before the New York State Assembly 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.

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

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.

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

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