Judicial Reports: Experience Preferred?

By John Ennis

Posted on 09-22-06

 

In the wake of Lopez Torres v. New York State Board of Elections, the decision by the U.S. Court of Appeals Second Circuit affirming that New York’s Supreme Court primary selection system is unconstitutional, a debate has emerged on how to approach its reform. One factor often overlooked by the media is judicial experience prior to joining the Supreme Court. This analysis will explore that issue from the eye of the storm: Brooklyn.

 

The state Constitution anachronistically allows for only one elected Supreme Court Justice per 50,000 county residents. Under this parameter, Brooklyn’s population of almost 2.5 million people permits fewer than 50 justices, an inadequate number for a 21st Century legal system, particularly in a major urban area. Through necessity and circumvention, Brooklyn is able to count 80 such jurists by employing the statewide practice of promoting lower court judges to the position of "Acting Supreme Court Justice." So, first, what's the breakdown there?

 

How Brooklyn’s 80 justices earned their Supreme Court assignment:

Elected         44   55%

Acting          28   35%

Certificated     8   10%

 

Note: Under the state Constitution, judges over the age of 70 must be certificated every two years.

 

Now, what about the specifics of where they came from? The Supreme Court typically handles felonies, and suits with stakes above $25,000. New York City's smaller cases (misdemeanors and suits below the threshold) are assigned to the lower courts. IJS examined the Brooklyn Supreme Court judges to detemine how many of them had lower court experience.

 

All eight of the Certificated justices were already sitting on the Supreme Court when they became septuagenarians. The Certification process merely ratified their current position. This study accounted for that and looked at their previous lower court experience before they initially joined the Supreme Court. The 28 Acting justices would seem by definition to have had previous judicial experience, but there lies a twist — judges from the Court of Claims often spend no time there before being promoted to the Supreme Court (their assignment and promotion can be nearly simultaneous). For the purposes of this analysis, such judges were treated as having no earlier bench experience.

 

Supreme Court Judges with No Previous Judicial Experience

Acting           9/28   32%

Certificated    2/08    25%

Elected         10/44   23%

Total            21/80   26%

 

Court of Origin for Those With Previous Experience

Civil Court          35

Criminal Court     30

Family  Court       6

 

Note: The sum is 71, because 12 of the 59 judges served on two courts.

 

Average Number of Years of Lower Court Experience

Mean:    7.0

Median:  6.0

 

Rightly or wrongly, politics is one profession where additional experience is often equated with diminishing performance (hence, many jurisdicitons adopt term limits). It would seem that New York judges are bound to get more involved in the political system (welcome to the world after Lopez Torres). If those jurists strive to remain apolitical (as most would hope), an essential question must be asked: Does previous judicial experience matter? IJS will tackle that question soon.

Posted by Ennis on September 22, 2006 07:01 PM to Judicial Reports