THE HEARING

On January 8, 2007, the Senate Judiciary Committee held its first legislative hearing about the pressing issue of judicial selection reform. Almost one year ago, U.S. District Judge John Gleeson overturned the state’s outdated and rigged judicial convention system for selecting Supreme Court judges in the case, Lopez Torres vs. NYS Board of Elections.

The decision survived federal appeal last year, and the state Legislature must come up with a solution that comports with Gleeson's mandate, or see a default to open primaries for the 2007 election in June. Over the holidays, 24 incumbent judges around the state watched that deadline creep closer and closer — petrified that they could be forced to raise and spend upwards of $300,000 to win re-elections that were assured for a pittance under the old system.

The legislators entertained three main options for reform: a modification of the party-controlled judicial conventions, completely open primaries, or a merit-based selection system. Also hanging in the balance was a piece of state Senate legislation regarding judicial elections.

In 2005, Senator John A. DeFrancisco, the Republican chair the Senate Judiciary Committee, engineered passage of the judicial selection bill, S.55A. That legislation would create open primary races for judicial seats, allowing candidates to join the primary ballot by a petition process, throwing out the convention system that Gleeson declared unconstitutional.

The state Assembly held a set of three similar hearings last Fall, but no additional legislation has been passed. The Assembly has left DeFrancisco’s bill untouched, perhaps signaling a partisan split in the houses that will stretch out the debate over judicial selection.

In the interests of saving trees and research time for court watchers, Judicial Reports has archived that testimony in one easy-reading, digital digest. Click here to see the complete testimony archive, or follow the abbreviated summaries below.

THE TESTIMONY
“In all due respect, the Mayor and I do not believe that Chairman DeFrancisco’s proposed bill, which passed the state Senate last year, and which would embrace the open primary as the new system for selecting Supreme Court justices, is the right result. We believe that open primaries would be a disaster,” said Corporation Counsel Michael A. Cardozo.

Cardozo argued that open primaries would be prohibitively expensive and potentially damaging to the public’s faith in the judiciary. As an alternative, he hoped the state Senate would endorse a bill that kept the judicial convention system while changing the delegate system that the federal judge ruled unconstitutional.

These changes would include: lowering the number of signatures required to field delegates at the convention, reducing the number of delegates, and allowing candidates a chance to communicate with the delegates during the proceedings.

Click here to read Michael A. Cardozo’s testimony.

 
Frederick A.O. Schwarz, Jr., reminded the Legislature to focus on the constitutional problems mentioned in the federal decision. Schwarz had argued on behalf of Brooklyn Surrogate Margarita Lopez Torres in the landmark suit that overturned the judicial convention system, and urged the legislators to avoid merely “tinkering” with the convention system — a move that could spur further litigation.

In his testimony, Schwarz suggested a compromise solution that might satisfy both convention supporters and primary supporters. He proposed a system in which the judicial convention was significantly modified: the selection of delegates and the actual convention would be moved to an earlier date, coupled with a lower threshold of delegate votes to get on the ballot.

Most importantly, the compromise called for a fail-safe mechanism through which candidates spurned at the convention could petition for access to the primary ballot as well. “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.

Click here to read Frederick A.O. Schwarz’s testimony.


Victor A. Kovner, the chair of The Committee for Modern Courts, defended a switch to a “qualification commission-based appointive system” to select judges, a system his group has espoused for 50 years.  Such a merit-based system would take a constitutional amendment to implement — a process requiring at least three years of legislative work, because it would have to be passed by two separately elected Legislatures, followed by a plebiscite.

As a temporary solution, Kovner hoped to repair the judicial convention system. He believed open primaries would be too expensive, but suggested that the state enact public financing and create “independent judicial qualifying commissions” in the event that the 2007 election defaults to primaries.

“[These commissions] would also serve the voters, your constituents, who when faced with the choice of voting for a judicial candidate in an open primary would have limited, if any information, beyond paid political advertisements, as to who the qualified candidates are,” he said, stressing the importance of a regulatory body in free-for-all elections.

Click here to read Victor A. Kovner’s testimony.

 
Margarita Lopez Torres submitted written testimony at Monday's hearing. Lopez Torres was the judge who started it all by challenging the convention system. Her testimony reminded lawmakers that she was “unconvinced that an appointment process necessarily guarantees a more qualified, more diverse, and less politicized judiciary . . . I am convinced, however, that the public confidence in the existing electoral process has been eroded,  because of the lack of transparency and weaknesses in the judicial  screening and selection process.”

She also pointedly questioned the assumption that “ordinary voters” cannot be entrusted to choose judges at the ballot box. “There is nothing so unique about New York State and, in particular, the Supreme Court of New York State, that requires the imposition of this one-of-a -kind, Byzantine method of selecting judges.”

Lopez also urged close scrutiny of some of the proposals offered as alternatives to the convention system, cautioning against “perpetuating structural defects” of the conventions. Lastly, she recommended that judicial districts be made smaller to ensure that the fundraising necessary to mount a campaign is less burdensome and that candidates are allowed to collect signatures from voters in order to win a place on the primary ballot.

Click here to read Margarita Lopez Torres' testimony. 

New York Bar Association President Mark H. Alcott talked about “true reform” that requires more than patching up the judicial conventions. Calling for a constitutional amendment that would implement a merit selection process for judges, Alcott made a distinction between an appointive system and merit selection, arguing that appointments still left room for judgeships as political rewards. “An appointive system gives the appointing authority unlimited discretion to choose judges,” Alcott said in his testimony, and legislative approval of the judges is not required. “In contrast, merit selection sharply limits the appointing authority’s discretion; the choice is confined to those on a short list of meritorious nominees designated by the nonpartisan commission . . . the ultimate choice is subject to legislative confirmation.”

Speaking out in opposition to judicial elections, Alcott said that because of the process is predicated on the influence of campaign money, it would create “obvious conflict. . . . This appearance of impropriety would tarnish the public’s perception of the judicial system and erode the judiciary’s independence.” Public financing for judicial elections, said Alcott, is a “pie in the sky” hope and argued further that most voters do not have the “information necessary to make an intelligent choice.”

Click here to read the state Bar's testimony.