Testimony of Victor A. Kovner – January 8, 2007

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.

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 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.

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 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

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