Opponents of New York’s opaque judicial nomination system had cause enough to be worried when the U.S. Supreme Court agreed earlier this year to review the decision that had found the backroom regime of judge picking unconstitutional.

Now their concerns should be heightened, because defenders of the status quo have enlisted some of the most successful high court advocates of all time in preparation for the oral arguments to be heard this Wednesday. And the new defense team is also shifting tactics by placing greater emphasis on the rights of political parties to make their own nominating rules, a change that some observers said might find credence with the current makeup of the court.

During the nearly two years of litigation, Frederick A. O. Schwarz, Jr., has represented the reformers against Joseph L. Forstadt, the Stroock & Stroock & Lavan attorney who defended the Association of New York State Supreme Court Justices. Many members of the bench opposed reforms, because they wanted continued insulation from the hurly burly of politics.

With the case now in Washington, D.C., the New York Board of Elections has hired famed high court advocate Theodore B. Olson to argue against the reforms. Supporting Olson with briefs, the state Republican Party has enlisted the deeply experienced Carter G. Phillips of Sidley Austin, and Democrats have brought on rising luminary Thomas C. Goldstein of Akin Gump Strauss Hauer & Feld.

Nearly two years ago, U.S. District Judge John Gleeson ruled that New York’s judicial convention system denied voters a “meaningful role” in the selection of state Supreme Court justices, because it gave party bosses too much control. In Lopez Torres vs. New York State Board of Elections, Gleeson declared that party bosses had unconstitutionally denied Margarita Lopez Torres and a handful of other frustrated judicial candidates a fair shot at the ballot.

Gleeson ordered the New York Legislature to create a new selection process, requiring open primaries as an interim solution. A panel of the U.S. Court of Appeals for the Second Circuit unanimously affirmed the ruling in August 2006. Click here to read more about that historic ruling.

Then the U.S. Supreme Court stunned reformers in February when it granted a petition for review filed by the Association of New York State Supreme Court Justices. Click here for that story.


Before the U.S. Supreme Court arguments, Forstadt and a number of prominent judicial leaders had stressed that, without the safety valve of judicial conventions, running for the bench would require costly and unethical open primaries — putting judicial candidates into potentially compromising political positions. Now, defenders are plying a new line.

“The argument has morphed into more of a political party matter rather than solely an issue of the selection of judges,” said Forstadt. “[It’s about] whether political leaders have the right to choose the nominees for the party.”

Olson, a Gibson, Dunn & Crutcher partner, will lead the oral arguments on Wednesday, speaking in front of the court for 20 of his side’s allotted 30 minutes. He will be joined by Andrew J. Rossman, like Goldstein, a partner at Akin Gump. Rossman represented the New York County Democratic Committee at the Second Circuit appeal and will argue the remaining 10 minutes.

In Bush v. Gore, Olson won one of the most important election law cases in Supreme Court history for then-candidate George W. Bush in 2000. Schwarz, meanwhile, has been a prominent, vocal member of the New York bar for years.

But while Olson has argued before the high court no fewer than 46 times, Schwarz has done so only once.


James Sample, associate counsel at the Brennan Center for Justice who helped build the Lopez Torres suit since its inception, strongly disagreed that the claim threatened the vitality of authentic partisan politics.

“Petitioners have tried to make this case appear to be a right [party prerogatives] versus left [individual reformers] matter,” said Sample, referring particularly to the hiring of Olson. “But it’s about stakeholders in a corrupt status quo against stakeholders in a functioning democracy.”

From the beginning, the Brennan Center has argued that party bosses have unfairly controlled the judicial selection process. In New York City, the Democratic Party leadership and hundreds of handpicked delegates endorse Supreme Court candidates at a judicial convention every September.

Given the region’s overwhelming Democratic majority, that endorsement virtually guarantees an election victory.

But the political diagnosis doesn’t necessarily help the legal argument, according to one prominent high court observer who is not involved with the case.

“It’s really hard to construct a constitutional theory that says challengers need a fair shot at winning,” said Mark Tushnet, a professor at Harvard Law School. “The government doesn’t put anything in the way of them succeeding — it’s just hard.”

Concluded Tushnet: “Chances are the court will say something like ‘We’re not saying it’s a good system, but we can’t say it’s an unconstitutional system.’ ”

But another expert disagreed.

Garrett Epps, a law professor at the University of Oregon School of Law, disputed this logic, arguing that the Supreme Court would see the dynamic for what it is.

“From the outside, the system in New York doesn’t pass the smell test. If they share my olfactory sense [the Supreme Court] may say this doesn’t work. . . . It’s about the rights of the members of the parties to choose their own nominees. That’s what these primary cases are about.”


One legal expert thought the lawsuit would pique the interests of two justices in particular. "I think [Anthony M. Kennedy] will be terribly offended by the judicial selection system in New York," said Christopher S. Elmendorf, a law professor at the University of California at Davis School of Law, picking the justices who will be most sympathetic to the Brennan Center’s cause.

"Justice [Stephen G.] Breyer will look at this system and say it is not a sensible, good government arrangement. . . . Can either of them translate into [a majority]? If I had to venture a guess, I would say no."

As the case law shifts from New York’s largely Democratic-controlled scene to issues of federal law, the party loyalties that defined this case in the Second Circuit become cloudier — as illustrated by the choice of Olson to represent the state Board of Elections.

Despite having a massive body of U.S. Supreme Court experience, Olson has been a dedicated Republican attorney for years who served in the Reagan administration’s Department of Justice. After he prevailed in Bush v. Gore, President Bush nominated him solicitor general, a post he held until 2004.

 “I think there is a tendency to see [Olson] as this partisan guy, but I don’t see his legal career like that. He’s building a substantial Supreme Court practice,” said Professor Epps.

Nevertheless, Epps concluded that experience has shaped Olson’s career in front of the highest court: “He speaks with great authority to the conservative justices on the court, people who might be in the driver’s seat on this.”

Before Bush v. Gore, Olson had already spent a great deal of time at the U.S. Supreme Court, working as an appellate specialist at Gibson, Dunn & Crutcher and as Assistant Attorney General for the Office of Legal Counsel in the Reagan administration.

He’s argued every kind of case in front of the highest court, from telecommunications to voting rights to First Amendment cases.

And Professor Tushnet stressed that big cases like this, independent of competing philosophies, will always draw heavy firepower.

“The leading figures in the Supreme Court bar tend to align themselves with one party or the other. [But] I don’t think it’s intrinsic to the case,” he concluded.

In his U.S. Supreme Court brief, Olson argued that Lopez Torres undermined the constitutional power of political parties — moving the argument away from sordid Democratic Party bossing and into the realm of federal election law: “[A] political party is  not a traditional public forum. Treating a political party as such — as respondents urged and the courts below did — is to destroy it. Respondents have no First Amendment entitlement to state action that interjects them into the midst of a party’s decision as to who will (and who will not) be the  party’s standard-bearer in the general election.”

Throughout the suit, the Brennan Center has been led by Schwarz, a legal icon from the liberal side of the fence. Earlier this year he co-wrote a book bashing the Bush Administration’s policies about presidential power (Unchecked and Unbalanced: Presidential Power in a Time of Terror).

Schwarz made his name as New York City’s Corporation Counsel during Edward Koch’s tenure as mayor. But that has meant that most of his experience has been before state courts.

In his U.S. Supreme Court brief, Schwarz kept the focus on New York, rather than national, politics. “New York’s state-imposed nominating process creates a locked gate," he wrote, "to which those in control of the party machinery hold the only key.”


A powerful team of advocates have written briefs and managed the complex argument for the other parties attempting to overturn Gleeson’s ruling. During that preparation process, historically opposed political party bosses have banded together to save the judicial selection status quo.

Phillips is one of the attorneys representing the New York Republican State Committee. The managing partner of the Washington, D.C., office of Sidley Austin, he has had 54 appearances in front of the Supreme Court. The Democratic Committee on the other hand, has hired Goldstein, who leads U.S. Supreme Court litigation at Akin Gump. Although only in his 30s, Goldstein has already argued 17 cases in the highest court and is widely viewed as an established star.

In their U.S. Supreme Court brief, the political parties shared an historical argument about the probity of party control: “Since their inception in the early nineteenth century, conventions have served the beneficial purpose of mediating the preferences of rank-and-file party members through the informed determinations of delegates and  local party leaders,” they wrote. They further argued that Lopez Torres would destroy convention protocols around the country.

And it's true that if Lopez Torres survives appeal, it could affect the way that political parties carry out business.

Professor Elmendorf elaborated on that point while speculating about why the Supreme Court granted review. He theorized that the court felt Judge Gleeson and the appeals court had stretched election law too far — affecting not just elections, but political party operations nationwide: "[Perhaps] there was a real concern that the Second Circuit was taking electoral precedents and applying them to primary elections . . . the Supreme Court has been reluctant to apply electoral decisions to non-electoral processes."

Sample, by contrast, again stressed practicalities. “Disinterested organizations on the right and the left have come together to call New York’s system exactly what it is: the worst of all worlds,” he said.

The Brennan Center also included eleven amicus briefs, filed by a wide range of political figures, illustrating his point. The supporters included John Dunne, former Assistant United States Attorney General (serving under George H.W. Bush), Brooklyn District Attorney Charles J. Hynes, and former Mayor Koch.