Last week, former Civil Court Judge Karen B. Yellen nearly broke down on the witness stand, recalling how Democratic Party leadership undermined her re-election bid in 2002.

Dressed in a bright red blouse with her black hair trimmed short, Yellen described the financial train wreck that effectively ended her contested campaign. Brooklyn’s Democratic Party leadership had demanded $9,000 more from her depleted coffers, she said, threatening to withdraw its support for her if she failed to come up with the dollars.

“There wasn’t enough money left in my campaign finances for it. This was a fight for my career,” she said.

Over the last two weeks, the prosecution in the final trial of former Democratic Party leader Clarence Norman, Jr., called four judges to the stand, giving court watchers a fly-on-the-wall perspective into the petty disputes, bankrupt campaigns, and childish struggles that marked the end of Norman’s reign.

All four judges blamed party leadership, criticizing the very system that created their careers.

In so doing, they also offered a warning to reformers in Albany, where almost all proposals for changing judicial selection currently under discussion fail to address nomination systems in the lower courts. U.S. District Judge John Gleeson’s 2006 decision mandating a more open system for New York judicial selection only addressed nomination protocols for elected Supreme Court judges.

The activists’ failure to broaden their reforms has opened a huge loophole because nearly half of the judges who sit on the Supreme Court in New York City were appointed directly from other courts. (Indeed, that includes the very judge presiding over the Norman trial, though he was brought over from the appointed Court of Claims.)

“It’s hard to say the Gleeson case is anything but historic, but ultimately, its application is only to a relatively small pool of the state’s judges,” explained Megan Quattlebaum, associate director of the New York chapter of the reform group, Common Cause. “You have to begin these things somewhere . . . in normal times, people don’t wake up and think, ‘We’ve got to change the way we select judges!’ This is starting a discourse about judicial selection.”

HALF AWAKE
That wake-up call came when Gleeson ordered the state legislature to build a new system for nominating Supreme Court candidates. After the ruling survived two appeals, the state legislature began scrambling to work on a new system before the 2007 Supreme Court race defaults to open primaries.

The ruling never mentioned Civil Court races, however, and the Norman trial has revealed how party boss control is just as embedded in this tier, which feeds so many jurists to the big trial courts.

In New York City, Civil Court races are generally decided in pro forma primaries that determine the Democratic Party’s candidate (and which, except perhaps on Staten Island, are tantamount to election due to Democratic dominance).

Party leaders carefully monitor the primary ballots, making it very hard for an insurgent to mount an independent campaign. Last year, six Civil Court incumbents went unchallenged in the New York City primary, protected by party influence on the ballot.

In addition, three other kinds of judges take the bench without voter participation: Criminal Court judges are appointed by the Mayor, Housing Court judges are appointed by the Chief Judge, and Court of Claims judges are appointed by the Governor.  

The Norman trial is led by Judge Martin Marcus, a jurist who avoided the boss-run election game when Governor Mario Cuomo appointed him to the Court of Claims in 1990. He was reassigned immediately to the Supreme Court to serve as an Acting Judge handing drug caseloads that had swollen under the state’s Rockefeller drug laws.

Many judges have joined the bench through this ad hoc appointive system, which has received almost no scrutiny in the reform debate.

The state Constitution outlines the selection process simply: “The justices of the Supreme Court shall be chosen by the electors of the judicial district in which they are to serve.”

But the Constitution allows for only one Supreme Court justice for every 50,000 residents. Over the years, city demand has created a much greater need for judges than the Constitution allows.

Administrators and politicians began plucking judges from other courts, creating Acting Supreme Court judgeships that circumvent the election requirement.  

BOTCHED ELECTION AND ANGRY JUDGES
Interestingly enough, this Norman trial revolves around a botched election, in which outsiders claimed the prize.

Housing Court Judge Marcia Sikowitz and Yellen both testified that Norman and his associates had threatened to withdraw the party’s nomination if they didn’t use his preferred campaign specialists. The prosecution hopes to prove that Norman criminally coerced these two judicial candidates into obedience.

Surrogate Court Judge (and former Civil Court Judge) Margarita Lopez Torres and Housing Court Judge Delores J. Thomas both testified that Norman shut them out of the 2002 race, causing them to wage a successful bid against the Democratic Party’s slate of candidates.

The case reminded some court-watchers of the last time New York jurists took the witness stand in a judicial selection case — the one that led to Gleeson’s ruling. But the current round of judicial testimony has taken a dramatically different turn.

“What’s unusual about this case is that the judges are testifying about the process they went through to get elected. It opens up a window into processes we don’t usually see,” noted New York University School of Law professor Oscar G. Chase, pointing out a curious difference between these judicial grillings: “There were judges who testified in the [Lopez Torres vs. NYS Board of Elections] case too. Basically, except for the plaintiff, most of those judges defended their selection process.”

THE JUDICIAL WITNESS SHIFT
The contrast is striking. With the exception of insurgent Lopez Torres (the opening witness in the Norman trial as well), the Supreme Court justices called as witnesses in that case gave glowing reviews of the party boss system. Now, in Norman’s trial, judicial witnesses repeatedly have slammed that same system.

In 2004, the plaintiff, the Association of New York State Supreme Court Justices, submitted testimony from six Supreme Court justices in the early proceedings of Lopez Torres.

All six judicial witnesses were pleased as punch with a party boss system in Manhattan that had put them on the Supreme Court bench.

Former Civil Court Judge Yellen was not so lucky. As she recounted in the Norman trial, her judicial career ended in 2002, as she lost the primary to insurgent candidates Lopez Torres and Civil Court Judge Delores Thomas, despite having made the $9,000 payment demanded by the party.

“I lost, and I was out of a job,” she said, her voice cracking.

Both cases have produced some striking, unintended consequences for the judiciary as well.

While the 2002 Civil Court race toppled Norman’s personal empire in Brooklyn, his successor Vito Lopez appears to have maintained the Democratic Party’s control of Civil Court picks in the borough.
Ironically, the testimony in the Lopez Torres litigation backfired. Judge Gleeson was unimpressed by what he heard, and declared the Supreme Court selection system unconstitutionally restrictive.  As the state legislature and judicial reform groups struggle to agree on a solution, Supreme Court incumbents are bracing for an intense primary this year, without the safety net of the boss-controlled convention system.

Jerry Skurnik, a Manhattan consultant at the election firm Prime New York — a firm mentioned in the Norman trial testimony — saw a simple reason for differences in judicial testimony: “[Norman’s] is a criminal trial. The DA put them there under oath. In the Gleeson case, it was the defense that put the judges up.”

Skurnik added that he thought the Norman trial was unfair. “So far it seems to me the DA is trying to criminalize politics,” he explained.

EXPENSIVE NEW WORLD
While the Norman trial has shed unwelcome light on the consultancy business, the Gleeson decision could drum up plenty of new work for consultants such as Skurnik. Some consultants estimate that an open Supreme Court primary, unfettered by judicial conventions, could cost upwards of $300,000.

Joseph L. Forstadt from Stroock & Stroock & Lavan defended the justices association in the Lopez Torres litigation. He balked at any comparisons between Civil Court and Supreme Court races, citing the power inherent in the higher trial court.

“Supreme Court is a court of general jurisdiction. Cases involving hundreds of millions of dollars are potentially at issue in Supreme Court decisions. Entire industries can rise and fall in a Supreme Court case,” he explained. “Running for civil court is modest compared to what’s at stake in Supreme Court races.”

Forstadt feared that opening the primaries could attract many lawyers to vie for the power of a Supreme Court seat. He worried they might use personal wealth to self-finance, giving them an unfair advantage against incumbent justices in primaries.

Megan Quattlebaum from Common Cause rejected such a defense of incumbents.

“That’s always an aspect of what makes passing reform legislation difficult. Every time you change the rules of the game, there’s always fear that it will hurt the incumbents. The truth is, what it’s doing is getting you closer to a level playing field where incumbents stand the same chance as challengers,” she said.

THE NEXT STAGE
While he wouldn’t comment on the ongoing Norman trial, the president of the New York State Bar Association thinks there is only one solution to repair the state’s embattled judicial selection process, one solution for every judicial body from the Court of Appeals all the way down to the Civil Court.

“Our merit selection proposal covers all the courts,” said Mark H. Alcott, a partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP, elaborating the bar’s plan to initiate the drawn-out process of creating a merit selection amendment to the Constitution to replace judicial elections.  

“First and foremost, merit selection is a system where clubhouse politics is completely removed from the process,” he concluded.

The bar association did, however, recently include a “bypass compromise” in its proposed merit- selection bill for the Supreme Court, an interim solution that would allow for judicial primaries in which insurgent candidates could petition their way onto the ballot. Alcott added that as long as the primary system included a sunset provision or a merit-selection provision, the bar would accept this compromise.

Now, all sides are looking to Governor Eliot Spitzer for guidance, waiting to see if he will endorse some version that includes the bypass compromise.

No matter what he decides, however, the exclusive focus on big trial court primaries means that hundreds of other state judges will remain unaffected by this landmark shift in judicial selection.