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.
Comments
I think you miss the point about previous judicial experience. It's a red herring. All judges, regardless of the court they're on need the same qualities -- a judicial temperament and demeanor (that means remaining calm in the face of lawyers who know nothing about the basics of practice and in the face of parties who are really contemptible), knowledge of substantive and procedural law or a willingnes to quickly learn it and a willingness to work hard (that means taking home piles of papers to read).
It really doesn't matter whether a Supreme Court nominee has spent time on a lower. I'd rather have a solid, experienced lawyer whose never spent a day on Civil Court bench than a lazy fool who started on the Civil Court bench and politicked his/her way to the Supreme Court.
There are two useful surveys you can perform. First, how many sitting judges are former elected officals rewarded for their years of party service? How many Supreme Court judtices are related to elected and/or party officials? Second, how many judges worked their way up from "law secretary" and never spent a day in real practice, so they have no sense of what private practice lawyers do and what their work demands are?
Think about that.
Posted by: Harry Steinberg | September 29, 2006 08:28 AM