Defenders of the status quo might have thought that last week’s ruling by the U.S. Supreme Court finally laid to rest the push for judicial selection reform in New York.

“I think we were anticipating the decision because of the nature of the oral arguments and the questions raised by the justices,” said Dennis R. Hawkins, executive director of The Fund for Modern Courts. “I can’t really say it was a surprise, but in our public statement we did express regret.”

Although he was careful to separate the two issues, Hawkins said Tuesday that the Fund’s big push now would come in the area of judicial pay raises.

The group had helped write an amicus brief for the U.S. Supreme Court on the Lopez Torres vs. New York State Board of Elections lawsuit that nearly ended the state’s byzantine and opaque selection system, joining a fight led by the Brennan Center for Justice, among others.   

For the time being, New York Supreme Court justices will continue to be selected at conventions where political insiders work with party leaders to pick candidates who are virtually assured election victory in the state’s highly polarized political regions.

But while the advocates of change do appear a bit shell-shocked, observers already are anticipating the opening of new fronts in the reform wars. At least three options still exist.


In its decision, the U.S. Supreme Court only rejected the First Amendment claims of frustrated primary candidates. That leaves two other constitutional doors open — one state, one federal.

Although none of the parties in the suit would discuss this matter in depth, a challenge under New York’s Constitution would, according to one expert, focus on either suffrage provisions in Article II or judicial selection rules in Article VI.

Secondly, reformers could argue that the system violates the U.S. Constitution’s Equal Protection Clause, building a case (on grounds other than “free speech”) that candidates are not granted fair access to the ballot.

Finally, reformers could continue the perpetual, slow work of lobbying the New York legislature to change the way the state picks judges.

Susan Lerner, the executive director of Common Cause/NY, a good government group that joined the Brennan Center and frustrated Supreme Court candidates on Lopez Torres, argued for a state-level suit in an interview.

“I think the litigation is a strong tool to alert people to the problem and move us  to a more effective solution. We are a named party and we are not changing our status. We think its important to have the litigation go forward. Brennan Center will advise us as a party to the litigation,” said the director.

Richard Briffault, a legislative law expert at Columbia Law School, theorized about advocating for either voters or candidates under New York provisions. “The state constitution gives some direct protections of voting. [They could make] an Article II claim, perhaps . . . in Article VI there might be a judiciary angle.”

While Briffault didn’t cite specific clauses in the state constitution, Article II opens with an explicit affirmation of voting rights: “Every citizen shall be entitled to vote at every election for all officers elected by the people and upon all questions submitted to the vote of the people provided that such citizen is eighteen years of age or over and shall have been a resident of this state, and of the county, city, or village for thirty days next preceding an election.”

Article VI also explicitly connects Supreme Court judgeships to general elections in Section 21: “When a vacancy shall occur, otherwise than by expiration of term, in the office of justice of the supreme court, of judge of the county court, of judge of the surrogate's court or judge of the family court outside the city of New York, it shall be filled for a full term at the next general election.”

The Brennan Center declined to discuss litigation, deferring to a public statement from Senior Counsel, Frederick A.O. Schwarz, Jr. to the effect that, “The plaintiffs are considering further litigation options.”

Lerner was explicit about her faith in the legal minds behind the shipwrecked lawsuit. “I promise whatever they say we will follow. I would be very surprised if the litigation didn’t go forward on the state claims.”


Nathaniel Persily, a Columbia Law School professor, strongly disagreed with this strategy, explaining how Lopez Torres revealed a flawed, but constitutional system. “I tend to think there’s going to be better success by going through the legislature on this, rather than litigation,” he said.

“The State may have won, but it won by defending a marginally indefensible system. What one can hope is that New York State will change its method. I would think that the good government groups should push for that, rather than going to the courts.”

More than one member of the reform camp pointed out that at least one door for federal litigation might have been left open.

Justice Anthony Kennedy raised the issue of a possible Equal Protection Clause problem in his concurring opinion, citing an election law case in which the high court found that the 14th  Amendment trumped Texas election law. “This is not to say an alternative route to the general election exempts the [New York] delegate primary/nominating convention from all scrutiny,” he wrote.

But Briffault saw this as a dead-end for litigants making federal claims , citing the fact that the convention system does allow insurgent candidates to mount a campaign — even if they have no chance at winning, the chance exists.

“But as long as there is some openness in the party, you’re not entitled to what the court calls a ‘fair shot,’ said Professor Briffault. He explained that the seemingly rigged nature of the judicial convention “may be a testimony to members’ support of their organization.”

In January 2006, U.S. District Judge John Gleeson overturned the state convention system, deciding that party bosses unfairly controlled the judicial selection process.

Gleeson had ordered the New York legislature to create a better system, and the Second Circuit upheld his opinion in August 2006 — generating months of intense discussions and hearings between key legal players around the state.

Many reformers hope to reignite that passion for reform, an emotion noticeably lacking in the deadlocked legislature and politically besieged office of Governor Eliot Spitzer.

“More public pressure on the legislature is important. This does not seem to be a particularly productive period in Albany,” said Lerner, remembering how the legislature failed to muster enough support for judicial cost-of-living adjustments last year.

“Witness the way the judicial pay raise has got tied up — that should be a no-brainer!”


During the course of Brooklyn judicial corruption investigations and the Lopez Torres litigation, Brooklyn District Attorney Charles J. Hynes founded the Coalition for Judicial Justice. His group, which included prominent legal leaders and activists, developed a strategy for judicial selection reform.

In 2005, Hynes pushed for a judicial appointment system, but his group has been silent as of late. However, according to the DA’s director of public information, Jerry Schmetterer, the Supreme Court decision has awakened the DA’s passion for reform.

“[H]e’s taking steps to work with other legal entities towards getting a change in the state constitution. It’s too soon for specifics, but he’s trying to gather the forces to do that, but that’s what he wants to do, work to create a constitutional amendment to reform the way that judges are selected,” said the spokesperson.

The Fund for Modern Courts expressed a similar legislative hope, returning to a position they have held for years. While stressing that judicial compensation reform is his group’s most pressing issue, Hawkins noted, “We will continue to push for a qualification-based appointive system as the best way to select Supreme Court justices.”