Judicial Reports: Crashing the Gates
By Jason Boog
Posted 09-08-06
Defenders of the country club had hoped the judge's testimony would secure the gates. Instead, it sent an open invitation to party crashers.
When defense counsel for the New York judicial establishment called Supreme Court judge Sheila Abdus-Salaam to the stand in 2004, they were confident her testimony would convince federal judge John Gleeson that the judicial convention system was constitutional. At issue was the landmark federal case, Lopez Torres vs. New York State Board of Elections.
They must have assumed that the modest, plain-spoken description of the process by such a witness—who sits in Manhattan’s medical malpractice part—would trump the image of candidates forced to leap through hoops in smoke-filled rooms.
They were wrong.
For two days of testimony, Justice Abdus-Salaam provided an unprecedented glimpse into the byzantine maneuverings behind the Supreme Court elections. Sometimes boring, sometimes ridiculous, the process never sounded pretty.
The judge explained how state Assemblyman Herman “Denny” Farrell Jr., chairman of the New York State Democratic Committee, urged her to go before the Supreme Court screening panel back in 1993. Salaam sat before 12 or 15 party-selected screeners and apparently succeeded in charming the group.
At that point, the machine smoothly shifted into high gear—using party workers to collect the thousands of signatures required to build a slate of judicial delegates to vote for Abdus-Salaam at the judicial convention. Without the support of party leaders, a challenger would have to mount a massive, expensive signature campaign to muster comparable support at the convention.
She embarked on a string of fundraiser dinners and political club visits, finally throwing a “delegate’s party” to introduce herself to the estimated 200 delegates and alternates who would pick five judges to nominate as Democratic candidates at the September judicial convention.
Her testimony (click here for excerpts) concluded with a recitation of bean-counting on the convention floor. She painstakingly described scratch-paper math she used to track her delegation supporters.
There were a few suspenseful moments, but ultimately, Abdus-Salaam received the party’s stamp of approval. The nomination virtually assured Abdus-Salaam’s win, and she swept into the 14-year post, along with four other Democratic Party picks, beating the nearest Republican contender by more than sixty thousand votes.
In all, it sounded more like being rushed for a sorority or fraternity than being vetted for a branch of government that settles massive financial claims and decides which citizens go to Rikers Island.
Indeed, New York is the only state in the nation with such a party-rigged convention system for selecting its top trial judges.
Gleeson’s ruling made no bones about his disapproval of the process, and he declared the system unconstitutional. In late August, a three-judge panel from the U.S. Court of Appeals for the Second Circuit unanimously affirmed Gleeson’s ruling, which mandates open primaries until the state legislature builds a new system. (See appellate ruling, Lopez Torres v. New York State Board of Elections)
Without the guiding hand of the Democratic Party, an open primary could jack up the price tag of a Supreme Court race by hundreds of thousands of dollars. While Gleeson stayed his decision to avoid disrupting the 2006 election, the Second Circuit panel flatly denied another extension for next year’s race.
“I think it was wrong,” said Joseph L. Forstadt from Stroock & Stroock & Lavan. Forstadt defended the Association of New York State Supreme Court Justices in front of Gleeson. “I put six Supreme Court justices on the witness stand, they testified that they got their jobs by the sweat of their own brow. I think the court should have relied on the credibility of their testimony.”
Forstadt and others are currently considering other appeal options. But the odds are now very heavy that 2007 will see a slew of pricey battles.
Abdus-Salaam estimated she spent less than $2,000 on the entire campaign in 1993.
When asked how she would finance a re-election bid in an open primary, she had a gloomier outlook: “I would have to hock my brownstone, I don’t have relatives with money like that, raising bits and pieces, I think it would [be] difficult, because I’ve been on the bench so long we haven’t been allowed to do any sort of mingling with clubs.”
Now, it looks like Justice Abdus-Salaam might have to consider that second mortgage.
Consultant Peter R. Weiss, for one, thinks she’s facing precisely such a steep financial climb. What would he tell a prospective candidate in an open primary?
“Raise a lot of money,” he said. “Two hundred grand would be the minimum. Three hundred thousand would be better. If you are an incumbent, you’ve been out of circulation for 14 years. That’s a problem. Party leadership has changed, and you have to start from scratch.”
Weiss saw the effects immediately after the Gleeson decision dropped last January. The consultant said he received phone calls from Manhattan attorneys who hoped to run in Brooklyn in the event of an open primary. They saw an opportunity in five open seats for 2006 in a borough that they assumed would have less competition than their own.
Panicked by the prospect of being forced to raise hundreds of thousands of dollars in time for the 2006 campaign, Supreme Court justice Joan Lobis was among a half-dozen incumbents who petitioned Gleeson for a delay: “[M]y contact with the political process has been quite minimal, and long ago,” she wrote in an affidavit. “Not only would this entire process be wholly foreign to anything I have done, it would also be totally at odds with my professional life for the last 20 years.”
As unimpressed as Gleeson had been by the defense of the ancient regime, he sympathized with those claiming they’d have no time to avoid an electoral guillotine. The judge stayed his own ruling until after the 2006 election.
In 2007, however, an open primary could wreak havoc in three New York City boroughs. According to records on file at the Unified Court System, six incumbent justices will face re-election next year: Abdus-Salaam, Fern Fisher and Charles E. Ramos in Manhattan; L. Priscilla Hall, Larry D. Martin, and Albert Tomei in Brooklyn and Staten Island. In addition, two seats will be opened by retirement in Queens.
Despite the potentially prohibitive price tag, some court watchers see the new system as a step toward better government: “It’s a great day for democracy in New York,” said Gary Tilzer, the campaign manager who fought to win a judicial spot for Surrogate Judge Margarita Lopez Torres. “Now you have a system where challengers have a shot.”
In 2004, Tilzer’s candidate took the election battle to Judge Gleeson’s courtroom. After combing through 10,000 pages of evidence, Judge Gleeson concluded that the plaintiffs—Surrogate Lopez Torres, the Brennan Center for Justice, and eight frustrated judicial candidates—were unfairly excluded by the convention system.
In the wake of the appellate ruling, the fate of the system now rests in the hands of the state legislature.
The Republican-dominated state Senate rushed through an election reform bill (S.55-A) in January, led by Senator John A. DeFrancisco. The bill would create a petition mechanism whereby candidates without the party’s blessing could still join the primary ballot. That measure has stalled in the state Assembly’s Election Law Committee since February.
According to Deanna Cohen, a spokesperson for DeFrancisco’s office, the Assembly isn’t scheduled for another lawmaking decision until January, but she’s hopes they will schedule an extra session to address the bill. “We’d like to see the bill passed in the assembly, and Senator DeFrancisco suggested an alternative bill also—he’s open to other ideas.”
Various election specialists are happy to provide suggestions.
“It’s going to put a lot of pressure on the legislature,” consultant Tilzer acknowledged. “If they don’t work on district size, an open primary will be difficult.” He advised the legislature to create smaller judicial districts and provide matching funds for judicial candidates—allowing candidates to run on a level playing field.
Under New York election law, the state comprises of 12 judicial districts, each with a different number of “authorized Supreme Court positions.” Both parties choose Supreme Court delegates through a mind-boggling calculus of district size and voting patterns within individual districts, electing candidates to fill a 14-year spot on the court.
In Manhattan, the First Judicial District (JD) on the election grid, two incumbent seats out of 38 Supreme Court positions are up for re-election in 2006. In Brooklyn and Richmond counties (Second JD), five out of 52 seats are technically open, with two incumbents and three retiring justices. In Queens, (Eleventh JD), there are four incumbents and three retiring judges out of 38 seats. Finally, in the Bronx (Twelfth JD), there is one incumbent and one retiring judge out of 24 seats.
“The Second Circuit ruling doesn’t call for nip and tuck changes,” said James Sample, associate counsel for the Brennan Center for Justice, the group that helped Margarita Lopez Torres file her suit. He stressed that the state legislature should avoid making only “incremental changes” to the judicial election system—quick fixes such as creating an independent screening panel or requiring fewer signatures to build a delegate slate.
“That still keeps it in control of party bosses,” explained Sample. “We just think minor changes to the status quo are insufficient. We have to be careful not to let incremental reform become the ally of the unconstitutional status quo.”
According to Manhattan election consultant and political writer Jerry Skurnik, the legislature should think about ways to protect incumbents like Abdus-Salaam. Traditionally, incumbent judges in both the Appellate Division and the Supreme Court automatically receive re-election nods at the convention.
Skurnik advises Supreme Court justices to lobby for an “assigned vacancy” law that would help insulate incumbent judges from direct competition—compelling new candidates to declare which vacancy they were seeking, rather than indirectly challenging an incumbent.
In Skurnik’s hypothetical, an unopposed incumbent could be toppled by two primary candidates who weren’t even seeking her seat if they both somehow outpolled her among primary voters. Talking about the one vacant judicial seat in Manhattan in 2007, Skurnik explained: “[Abdus-Salaam] may lose, even though nobody is opposing her!”
Posted by Jason on September 8, 2006 07:25 AM to Judicial Reports