Judicial Reports: Appoint or Vote?

By John Ennis

11-10-2006

 

Tuesday’s election marked the passing of an era. No longer will New York Supreme Court justices be decided by a judicial nominating convention system — a method the federal courts have ruled unconstitutional. In the pursuit of reform, the state faces several choices. Here are two:

 

1. Move to an open primary selection system where voters will decide the nominees.

2. Construct a merit-based appointment system.

 

For now, determining in which direction to proceed is up to Albany. In an attempt to ascertain their leanings, The Fund for Modern Courts recently completed an eight-question survey of prospective legislators. LexMetrics has examined these results.

 

Ninety-five of the 380 candidates on Tuesday’s ballot responded to the Modern Courts' questionnaire— hardly universal, but a decent sized sample. First, a summary of the aspects that were greeted with near unanimity:

 

1. All of the respondents support legislative action in changing the Supreme Court selection process.

2. Ninety-four of the 95 prospective legislators supported public hearings before amending these laws.

3. Almost all supported some of the recommendations made by the Feerick Commission (which had been assembled by Chief Judge Judith S. Kaye to examine judicial reform). Since the survey didn’t require specificity as to which recommendations were preferred, all we can conclude is that the legislators are receptive to change in general.

4. Ninety-five percent of respondents supported the establishment of independent judicial qualifying commissions (IJQC-a Feerick recommendation) that would report their findings on individual candidates to delegates and voters. They would only provide information, not actually select judicial candidates.

5. Similarly, almost all thought IJQCs should be set up for other lower court judges who are also elected.

6. Going out on a limb, all respondents thought that the court system was important to their community.

 

Now to the two issues that are at the heart of the matter:

 

1. More than two-thirds of the respondents favored a merit selection system over open elections for Supreme Court justices.

2. In the event open primaries are held next year, the vast majority supported the public financing of judicial campaigns.

 

Even though the survey shows the Legislature might be leaning toward a merit-based selection system, there's a rub: “Many had conflicting thoughts on the issue . . . ” Here’s the second rub: such a system would take three years to enact because it requires changing the State Constitution.

 

So, even if 100% of legislators favor an appointment system, judicial candidates will still face open primaries for the next several years. Whether or not a public financing system can be implemented by next year's primary season — well, that’s anyone’s guess.

 

Note: for the full survey results, go to www.moderncourts.org

Posted by Ennis on November 10, 2006 07:59 AM to Judicial Reports