Judicial Reports: CARDOZO'S REFORM Rx

Let me begin by explaining very quickly how Supreme Court justices are nominated. To become a Supreme Court justice in New York, you don’t run in a primary, unlike candidates for the Civil Court or for Surrogate. Instead, in each of the four judicial districts in the city (Brooklyn and Staten Island are considered one district) there is what is called a judicial convention, with the convention delegates elected in the primary about a week earlier. Each party nominates its Supreme Court candidates at the judicial convention and the nominated candidates then run in the general election in November. Of course, in this heavily Democratic city, nomination by the Democratic judicial convention usually means election. Now, let me move to my point. Regardless of whom you voted for in the last mayoral election, I assume, if I mentioned the names Michael Bloomberg, Freddy Ferrer, Anthony Weiner, Virginia Fields, Gifford Miller and Bill Thompson, you would remember which of them you voted for in the primary and general election.

Now I want to pose a question to this sophisticated audience. It boils down to this: Will you please stand up if you remember the names of two people for whom you voted for judge, in last September’s primary or last November's general election. No one. Think of it, not a single person in this audience can remember the name of even two judicial candidates even though, depending on the borough in which you live, there were from four-to-ten contested judicial slots to fill. So if no one here can remember the names of the judicial candidates for whom they voted, then presumably the general public doesn't remember either. In fact, I suspect that many of you—like many in the general voting public—probably didn't vote for judicial candidates at all.

Why don't people vote for judges? I think there are two somewhat related answers. First, voters don’t know anything about the candidates. There is hardly any campaigning for the position. Second, if there is a campaign, how are voters to decide? What are judicial campaigns supposed to be about? Someone saying he or she is fairer than the next guy? Simply put, there really is very little basis on which the voter can make an intelligent decision on which judicial candidate he should vote for.

There has been a terrible, frankly frightening, consequence to this voter ignorance and nonparticipation in the determination of the people who will become our judges. The decision on who will become a judge has been left solely in the hands of a small group of people: county political leaders. As one Supreme Court justice, who was ultimately forced to step down for disciplinary violations, said, "You don't have to know something to be a judge, you have to know somebody. They give you a robe and expect you to know the law.”

Shame on us if this is the way we have allowed our judges to be selected. Certainly the politicians whom we have allowed to select our judges in too many cases don’t select their judicial candidates based on merit. Nor do they take into account the opinions of people who might be in a position to determine judicial qualifications. Last year, for example, nine of the Brooklyn Supreme and Civil Court candidates on the ballot were found unqualified by most major bar associations. But the politicians nominated them anyway. One of those found unqualified was nominated for the bench because he was supported by the former Brooklyn Democratic party leader. Conversely, a Civil Court judge was denied nomination to the Supreme Court not because she was unqualified but because she had previously refused to hire as her court attorney the district leader's daughter.

Is this the way we want our judges to be selected? This flawed judicial selection process has consequences far beyond not elevating the best and the brightest to the bench. For example, in the last four years, three Supreme Court judges in Brooklyn have been charged with a felony; two of them have been convicted, and trial on the other is pending. Another Supreme Court judge, this one from Queens, has been recommended for removal for improper judicial conduct. And a number of other Supreme Court judges have been disciplined for improper behavior by the state Commission on Judicial Conduct.

And recently, to put the icing on the cake, U.S. District Judge John Gleeson declared unconstitutional the judicial convention system I just described. He ruled that given the way convention delegates are selected, it was virtually impossible for a candidate not supported by the party establishment to be nominated by the convention. Hence the system was unconstitutional. He went on to rule that until and unless that defect was solved, Supreme Court justices had to be selected in open primaries.

There is a judicial selection crisis in this state. The system has not only been found unconstitutional, but it is producing candidates who clearly are not the most highly qualified. What should be done? Ideally I believe, as does the Mayor, that we should have a merit selection system where judges would be appointed by the chief executive, following nomination of a limited number of candidates to the executive by an independent panel.

This is the way Mayor Bloomberg appoints judges to the Criminal and Family Court. An independent panel, of which he appoints a minority of members, recommends three candidates for every vacancy, from which he selects one. This judicial selection method, which has been used by mayors going back to Mayor Ed Koch, has served the city well. A similar method is used in selecting our judges to the Court of Appeals, the state’s highest court.

But to effect such a change for our Supreme Court justices requires a constitutional amendment. Not only will this take at least three years to accomplish, but it is far from certain that the legislature would adopt a merit selection amendment. So we are faced with some very stark choices.

1. We can hold out for merit selection (which may never come).

2. In the meantime:

a. Judges will be selected in primaries if the U.S. Court of Appeals for the Second Circuit affirms Judge Gleeson.

b. And if his decision is reversed, we will be stuck with selecting judges by the flawed system I described.

[Editor's Note: A panel of the U.S. Court of Appeals for the Second Circuit affirmed Gleeson's ruling in late August. Further appeals are still possible.]

3. The alternative is to fix the flawed judicial convention system. The Mayor and I vote for this latter solution.
Let me tell you why.

Imagine a judicial primary in this city. Will you vote for Candidate A because she says she will be fairer than her opponent? Will Candidate B be able to raise more money than Candidate A and by his television ads explain why he would be a better judge? Certainly I hope that in his efforts to garner lots of votes, his ads won’t say he will always decide for tenants or promise that he will be a “lock them up” judge.

The independence and fairness of our judiciary depends on judges approaching each case with an open mind; campaign promises to the contrary undermine that fundamental principle. And who will contribute to these judicial campaigns? I suspect it will be the very lawyers who will later appear before the ultimately victorious judicial candidate. That certainly won’t engender confidence that the judge will be fair or decide the case on the actual merits.

So if we are not going to have a merit selection appointment process, at least for some time, and if primaries are not the answer, the only other alternative that I see is to correct the flaws in the judicial convention nominating system. And this must be done by solving two separate problems.

First, we must ensure that the candidates nominated by the convention are those most highly qualified. We can do this by enacting a law requiring an independent judicial qualification committee to tell the convention who the three most qualified candidates are for each vacancy.

Second, we must deal with the federal court’s determination that the present convention system is unconstitutional because it is so difficult for candidates opposing the party to have his or her supporters elected as convention delegates. This problem too can be solved—and the solution is highly technical—if a law is passed reducing both the signature requirements to run for delegate and the number of delegates at the conventions themselves.

And of course, while this legislative effort is going on there is nothing—other than political inertia—to prevent the political parties from reforming themselves. They can pass internal rules creating independent screening panels and providing that they will only nominate for Supreme Court justice those found qualified by those panels.

Unfortunately, recent experience offers ample proof why we should not wait for parties to correct the problem, and why we must move forward with a legislative solution, now. We cannot afford to wait any longer to reform our judicial selection system. With every additional scandal the public loses more faith in our judiciary. More important, the rule of law on which we all rely depends on ensuring that all judges are unbiased and highly qualified. Moreover, there is long overdue momentum for real change in this area; we cannot waste this opportunity.

Michael Cardozo is Corporation Counsel for the City of New York. The article is adapted from a speech he delivered at New York Law School and is used with his permission.