Although he continued to insist on allowing candidates to petition their way onto primary ballots, he also embraced a continuing convention apparatus — albeit earlier in the year and with spots on the ballot for anyone gaining even a quarter of delegate votes. The idea emulates the nominating systems used for statewide offices, many of which have a convention bypass option to gather signatures and force primaries.

“This solution would give voters and candidates a real voice and a genuine opportunity to participate, while involving political parties in a way that is familiar to all participants in our State,” he explained.

Interviews this week with other key players in the reform debate indicate growing support for some version of such a compromise.

UNDER THE GOVERNOR'S THUMB
The senior counsel for the Brennan Center for Justice has spent two years litigating to overturn the state’s secretive convention system, via the landmark lawsuit, Lopez Torres vs. NYS Board of Elections. In January 2006, Gleeson found that the state Constitution required wresting control of judicial selection from the party bosses and encouraging more meaningful voter participation.

After staying that decision for the 2006 election cycle, Gleeson, declared that a more open system had to be in place for the 2007 cycle. The U.S. Court of Appeals for the Second Circuit upheld the ruling in August.

All of which laid the foundation for increasingly intense negotiations among advocates, good government groups, members of the judiciary, representatives in the Legislature, and members of both mainstream and minority bar associations. Then, at a press conference following his first State of the State address, Governor Eliot Spitzer placed his thumb on the scale.

“There must be a way to primary onto the ballot,” the Democratic governor was quoted in the New York Law Journal. “I will not support anything that has a closed conventions structure, where only those who come of out of the convention could be on the ballot.”

Given all the other dynamics involved, the statement likely galvanized various participants in the debate.
 
On the other side of the aisle, John A. DeFrancisco, the Republican chairman of the state Senate Judiciary Committee, has been a prominent advocate of voter participation in judicial selection for years. In 2005, he sponsored an open primary bill that won approval in the state Senate, but the Assembly never responded.

A spokesman for DeFrancisco explained the elegance of a convention bypass compromise.   

“You will preserve conventions, yet tremendously decrease the power of the party bosses over who gets on their party’s line for the general election,” explained Joseph T. Burns, legislative counsel to the Senator. “As time goes on you’re going to see more [reformers] saying this is our best solution for now.”

DIVIDED WE FALL
The judicial selection debate has divided historical allies, pitting some diversity groups who want to preserve or expand minority representation on the bench against good government groups whose pursuit of enhanced voter participation might not further that goal without other difficult changes. At the same time, seven minority bar organizations argued in open letters that the solution should "include an outlet through which candidates can earn a spot on a primary ballot by obtaining the petition signatures of rank-and-file voters who wish to support them."

Similarly, the Brennan Center for Justice, a longtime ally of the Committee for Modern Courts against a bossed-up regime that both find odious, has insisted on the constitutional mandate for more open elections even as Modern Courts has pushed for a merit appointment system that it believes would better promote both quality and diversity.

The shifting alliances can at times make the head spin.

The Committee for Modern Courts has always supported a long-term shift towards a merit selection, coupled with the creation of  “independent judicial qualifying commissions” to guarantee that the best candidates are selected during interim conventions. Still, they appreciated how Schwarz’s suggested compromise allowed for a screening mechanism.

“That recognition of the role that independent judicial qualifying commissions can play in their testimony was encouraging,” explained Dennis R. Hawkins, executive director of the Committee.  “We were amici curiae in their Lopez Torres appeal, and we respect their opinion on this issue.”

While the Committee won’t endorse a deal as yet, they recognized that compromise is in the air. “For now, we would prefer not to have this ballot access bypass mechanism,” concluded Hawkins. “But . . . Governor Spitzer said he favors this kind of access — that may be a political reality that we face.”

The Association of Justices of the Supreme Court of the State of New York, however, was unmoved.

“That form is for elected representatives of the people who should be subject to close scrutiny on their political philosophies. That does not apply to judges,” said Joseph L. Forstadt, one of the attorneys representing Supreme Court justices during the Lopez Torres litigation. “They should be treated in a distinctly different way.”

Forstadt worried that the constant threat of primaries would force justices into expensive races and credibility-damaging politicking that the old convention system avoided. His clients, along with some other prominent legal leaders, endorsed a set of less dramatic convention reforms proposed by the Commission to Promote Public Confidence in Judicial Elections, a blue ribbon panel established by Court of Appeals Chief Judge Judith S. Kaye and led by John D. Feerick, the former dean of Fordham University School of Law.

“The Chief Judge, numerous bar associations, and the mayor’s Corporation Counsel all argued against any form of primaries, pushing for the Feerick Commission’s reforms,” concluded Forstadt, rejecting the convention bypass compromise.

"DOWN-THE-MIDDLE SOLUTION"
A variety of legal leaders have supported Feerick’s reforms to the convention system, rather than the more radical changes outlined in the bypass compromise. They argue that relatively expensive open primaries and elitist appointive systems will exclude minorities, while the convention system will grant them access.

After grappling with these conflicts, the Women’s Bar Association of the State of New York voted to support the bypass compromise. Elaine N. Avery, the Bar’s president, explained how this solution came about.

“It’s the down-the-middle proposal we thought would satisfy the court, and at the same time, our members,” she said. “Many of our members think the convention is better than open primaries. It’s better for minorities as well.” She hoped the solution would meet Judge Gleeson’s constitutional criticisms, while allowing minorities the protection of a convention at the same time.
 
Out of all the voices in this debate, the New York State Bar Association has pushed hardest for a shift to a merit selection system — a constitutional change that would take at least three years to implement. While he was hesitant to endorse the bypass compromise, bar president Mark H. Alcott saw some hope in the structure:

“If there can be some coalescing around that plan,” said Alcott, stressing the need for a sunset provision to keep the revised convention a temporary fix, “along with merit-based proposals as a long term solution, then that could be a compromise.”

Alcott’s commentary reflected the question looming behind the compromise option. If the legislature adapts the bypass option, will the quick fix become a permanent solution? The compromise provides a fairly clean solution to the problem of the 2007 election, but legislators must account for the various voices clamoring for constitutional change in judicial selection.

The judicial selection crisis calls for compromise, but the short deadline could lead to a hasty truce that crumbles as soon as the first election season concludes.