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POL COLUMNS « False Claim | Rein in the Monster »

May 1, 2006

Picking Judges in New York

By Henry J. Stern

(Reprinted from New York Civic, February 9, 2006)

Recently, in a case that had been pending for several years, federal judge John Gleeson issued a rather remarkable decision. On January 27th, 2006, he wrote a 77-page opinion holding that the State of New York's constitutional provision for selecting Supreme Court Justices by judicial convention was in violation of the United States Constitution in that it deprived the people of the state of meaningful participation in the selection of judges.

Judge Gleeson ruled, as a finding of fact, that these conventions are tightly controlled by a small group of political leaders (the county bosses) and that judicial candidates not recommended by these bosses have no chance to be chosen for their party's nomination. Judge Gleeson directed the legislature to reform the system by this summer, when petitioning would need to begin for Supreme Court candidates, if primaries are to be held. In political and judicial circles, the decision is considered momentous. If upheld, it will result in substantial change in the way judges are chosen.

On Tuesday, Chief Judge Judith Kaye presented her annual State of the Judiciary message to the State Legislature. Part of her remarks dealt with the selection of judges. She presented a number of proposals to improve the existing system of judicial conventions, which had been developed by a commission headed by John Feerick, the dean of Fordham Law School. The proposals are meritorious and should be adopted, but they should not exclude the abolition of the grossly unfair system of judicial conventions. If they can be abolished, the reforms will have even greater effect, since voters are more likely to heed professional evaluations than party bosses, for whom a judgeship can be a commodity of value.

The demise of judicial conventions would not automatically lead to the selection of better judges. It would be, however, a healthy first step toward a merit-based judiciary. Primaries, especially borough-wide contests in Brooklyn and New York counties, are very expensive, the costs running into hundreds of thousands of dollars, and possibly more if there is a deep-pocketed aspirant.

If the candidates try to finance their campaigns by soliciting funds from litigants who may appear before them, they will create relationships that may interfere with their objectivity and impartiality. Rule 28-C: "Don't accept cigarettes in prison." You may incur obligations that you are unwilling to meet.

We should be aware that it requires honest, intelligent and fair-minded people to select good judges. The governor may appoint his out-of-town cronies to the Appellate Division, as has occurred in the First Department (Manhattan and the Bronx). The electorate may select the candidate who has spent the most money trying to reach them. The county bosses may select candidates based on a negotiated sale, since a public auction would appear unseemly, as well as be illegal.

It is possible, maybe even likely, that the payoffs would be less costly than the printing, polling, media buys and walking-around-money which comprise a great deal of the cost of political campaigns today. If judges must buy their robes (synecdoche), should they not be sold to the most worthy customers, not to the richest or the best connected?

The situation was summed up by Alexander Pope in 1734 in his "Essay on Man," where he wrote:

For forms of government let fools contest;
Whate'er is best administered is best:
For modes of faith let graceless zealots fight;
His can't be wrong whose life is in the right.

Judge Gleeson's decision has opened the door to reform of a self-serving practice in which mediocre insiders are elevated to the judiciary while far better qualified outsiders are excluded. We should do what we can to see that this unusual opportunity is not lost. There are many honest and able lawyers who would make fine judges. The bench should not be chosen from among ward-heelers, time-servers, sycophants, and rich lawyers seeking a hobby while in retirement from the hurly-burly of private practice. Let us be clear: there ARE decent, honest, and intelligent judges serving today. They deserve particular credit for beating the system and making their way to the bench.

The case of Brooklyn Judge Victor Barron, sentenced to prison for taking bribes, is cited both as an example of a corrupt judiciary, and as an indication of an honest one, since he is the only judge, out of many, who committed this particular crime. We should know, however, that the only way this case was made is that the victim of the shakedown complained to the district attorney, and wore a wire to trap the judge. The great majority of bribery cases are consensual, with the briber relatively satisfied with the result, and, if he had made a payoff, unwilling to complain lest he be disbarred himself. There is a thin line between bribery and extortion, and some cases have elements of both.

In our view, there are a good number of judges who either take money or gifts, side with their friends out of loyalty, don't understand the cases before them, or are too lazy to read the briefs. These vices appear to a greater or lesser extent in different individuals, and judges' performance can change over the years, as senility sets in, or as personal problems cause distress. That is human nature.

Our object is to find a system in which the wisest and fairest men and women will sit on the bench. This will elevate not only the reputation of the courts, but the quality of justice dispensed. The parasites in robes would have to content themselves with patronage from the surrogates, until the tide of reform reaches that barnacle-encrusted office.

Reform is always an uphill struggle. The system is the way it is because the people who live off it want it that way. But an opening has been created. We need a Prague Spring to take advantage of it. The cause will have to be championed by the MSM (mainstream media). The case for reform was first brought to public attention several years ago by the Daily News, and the Post joined in with enthusiasm. It is time to reactivate the Fourth Estate to clean out the Augean stables, and to try to find better horses.

Judicial reform is possible, even in Brooklyn. By the way, two other counties, Queens and the Bronx, are somewhat better, if only because they conduct the shabby business more decorously and discreetly. Staten Island is constantly being dragged down by Brooklyn, because they have been placed in the same judicial district. Manhattan is different; there the test is not so much money as ideology, ethnicity, gender and sexual orientation. Guess, in each category, which side is favored by the cadre composed of the activists in the New York County Democracy.

Henry J. Stern is president of NY Civic. In the last four years, he has written almost 300 articles on public issues, which are available on the group's website, Stern was New York City Parks Commissioner for fifteen years under Mayors Koch and Giuliani. He was elected to the City Council twice on the Liberal Party line. He is a graduate of the Bronx High School of Science, the City College of New York, and Harvard Law School.

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Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.