We Need to Change How Judges Get Picked in New York
The current system is broken and the left overlooks the state courts as an area both in need of reform and worthy of political contestation.
In the traditional and idealized tripartite conception of American government, each branch of government is intended to function independently of the other. For the judiciary, this independence is even more prized, so much so that it is taken as a sine qua non of the courts that they are non-partisan, separated not only from influence by the other branches of government but also from political processes themselves.
It is likewise accepted as a fundamental premise of American democratic organization that each branch of government is representative of its constituency. This representative quality may take whatever form is desired by constituents in a given time or place, whether demographic, autobiographical, or ideological.
Yet we can neither truthfully say that members of the judiciary are representative of the American people nor can we say that they are unaffected by party politics. Rather, research has confirmed that judges of color are both underrepresented at the federal level and in the New York state court system.[1] Reports have continued to find systemic racism and bias within the judiciary, affecting placement in trial parts and appellate courts, case selection, court administration, and the composition of juries.[2] Moreover, research has confirmed that members of the bench, besides being unrepresentative of the demographic diversity of New York or the United States, are often far more aligned with conservative and corporate ideological interests than New York or American voters at large.[3] Undoubtedly these factors have an effect on the resolution of cases and thus the trajectory of American law with respect to questions of racial equity and civil rights.
At the heart of this issue is how to properly separate the judiciary from influence from either party politics or the executive or legislative branches of government. At stake is the value of the judiciary as a functioning check on the other branches of government, the integrity of the democracy embodied in the American system, and the quality of the judiciary as a body free from conflicts of interest and thus positioned to resolve disputes fairly. So long as the judiciary continues to be unrepresentative of the American people, our democracy is stained, the political power of demographic minorities is unfairly impinged, and the value of even a perfectly representative executive or legislative branch is reduced.
How did it get like this?
Several methods of nominating judges are possible. Judges can be elected by voters in a specific jurisdiction; judges can be appointed by members of the executive or legislative branches of government; and hybrid models can be used.[4] The state of New York uses a hybrid model, in part because it has several overlapping judicial systems.[5] For example, some judicial positions in lower courts are appointed by the Office of Court Administration (OCA). New York City’s criminal and family court judges are appointed by the Mayor based on the recommendations of screening committees. Meanwhile, judges for New York’s Supreme Court and other trial courts are elected by voters. Judges for the Appellate Division and Court of Appeals are appointed by the Governor. Each of these systems contains its own unique problems affecting the demographic and ideological makeup of New York’s bench.
As a recent report by a group of Black jurists details, courts staffed with judges selected by the OCA suffer most greatly from a lack of adequate racial diversity.[6] Leadership of the OCA plays a significant role in these disparities, and indeed Black jurists and staff are frequently unrepresented at the highest ranks of the agency.[7]
The New York Supreme Court bench unfortunately suffers from another issue: the influence of party politics, and more specifically exclusionary party machinery. Instead of simply being elected, Supreme Court judges in New York must first be selected at a nominating convention in order to appear on the general election ballot. Delegates who can vote at each nominating convention are elected by voters on primary ballots. In theory, the process sounds democratic; however as the Brennan Center has noted, in practice “unaccountable political party leaders control every step of the process.”[8] Judicial convention delegates are hand-picked by county party officials and often do not even appear on the ballot because they run unopposed. In 2015, only one of the 11 assembly districts in the Bronx featured a contested delegate election.[9] The judicial nominating conventions that delegates attend are “strictly for show,” because “[t]he party leaders decide on their preferred judicial candidates in advance and direct the delegates accordingly.”[10] The delegates themselves are no mere random residents of an assembly district; they are almost always local party donors, loyalists, friends, family members, or members of campaign staff. The delegates themselves receive no information about the candidates in advance of the convention and do not receive time to debate the candidates’ qualifications. In 2007, the New York Times reported that in 96% of nominations, no alternate candidate was put forward.[11] The Times also found that the “conventions” last as little as 20 minutes.[12] As the Brennan Center noted in its 2015 analysis, “Even party leaders have conceded that the conventions are largely performative. ‘These delegates really don’t have any function,’ said one assemblyman, acknowledging that his wife, a delegate, knew ‘zero’ about the judicial candidates. ‘There is a fairly justified perception that things are sort of decided before the delegates go on.”[13] Because of cross-party endorsements on the ballot line, as well as the absence of an opposition party in most of New York’s cities, voters often don’t have a choice on the general election ballot at all. The whole process culminates in a ballot that asks voters to select the same number of judges as there are candidates.
There are several obvious problems with this system. Although this theoretically elective process has achieved more racial diversity than exists in the appellate courts or courts administered by OCA, the process makes a mockery of the meaning of elections by structurally eliminating choice for voters.[14] The process is plainly undemocratic, effectively placing unelected local political party elites in charge of judicial nominations to the Supreme Court, the trial court responsible for hearing the most complex and significant cases in the state. Moreover, this system threatens confidence in judicial quality, as parties have incentives to nominate judicial candidates for reasons besides their qualifications for the bench. A 2009 report that interviewed judges selected through elective processes provides a stark description of the problem and is worth quoting at length:
“[T]hese judges were often unabashedly political. They were candid about the fact that selection is a political process and frequently described the political factors that aided their candidacy in great detail. One judge from a partisan elective system openly admitted that he was not the “most experienced” at the time of his initial interim appointment and that he “leapfrogged ahead of someone with more experience” due to his political experience and relationships.
These judges discussed at length how they framed their appeal to the voters during their interviews. In addition, prior party registration, working on campaigns, hosting fundraisers and political networking all constituted important activities in elective states. One judge stated that he “was so active in the state and across the country, that he knew the ins and outs of a campaign.” He had “been involved in a number of local campaigns, and so [a campaign] was not a new adventure for [him] and [he] was well aware of the sacrifices.” Money was also described as crucially important in elective states. Many of the judges emphasized that candidates of color are frequently disadvantaged by their inability to raise large amounts of campaign funds. Some spoke of being limited to a smaller network of supporters and said it was difficult at times to broaden their appeal for fundraising.”[15]
Although the political party machinery in New York is a far cry from the days of Tammany Hall, local party machines are still a powerful force in city and state politics. Of significance, the state and borough party machines are deeply beholden to high-dollar campaign contributors and the interests they represent, notably big business, police unions, and the real estate lobby. Just as the local party machines select candidates for political office who legislate to protect these constituencies, often in spite of popular support, they select judicial candidates based a similar ideological alignment and affiliation with the donor class. As recent public discourse surrounding the addition of more than three hundred ideologically conservative and pro-corporate judges to the federal bench has illuminated, the influence of partisan politics with respect to judicial nominations deeply threatens the course of American law with respect to the fair resolution of questions concerning civil liberties, racial equity, and matters of economic justice and workers’ rights. Elective processes should force judicial nominees to campaign on their ideological positions just like candidates for any other public office, allowing the popular will to be exerted over the composition of the judiciary; however the tight control of nominating processes by the parties deprives voters of the ability to choose judges that actually reflect their values, and instead allows parties to stack the courts with judges that won’t threaten the interests of their donors. Arguably, the necessity of party affiliation also violates the first amendment’s right to free association, as the United States District Court for the Eastern District of New York found when it issued a preliminary injunction in 2006 mandating the establishment of a direct primary election to select nominees for the state Supreme Court and finding New York’s method of partisan judicial elections unconstitutional, a decision which a Second Circuit panel unanimously affirmed on appeal; however the circuit court’s decision was overturned by the United States Supreme Court in 2008.[16]
At the state appellate level, these problems are only magnified. The governor appoints judges to the Appellate Division and the Court of Appeals, but these judges can only be appointed from the state Supreme Court bench, perpetuating the filtering mechanism put in place at the trial court level by the political parties. No confirmation by the legislature is required.[17] The present governor has established judicial screening committees, whose members are public, for each appellate division, but these committees are staffed almost entirely with partners from corporate law firms with a history of large donations to political campaigns, deepening the role of the donor class within the judicial nominating process.[18] Corporate lawyers can in effect, with sufficient networking and donations to the party machinery, secure an ability to shape the bench before which they will argue their appeals. The chair of the judicial screening committee for the Third Department, for example, operates a political action committee responsible for donating over $500,000 to political campaigns in the last two years, including $19,000 to Andrew Cuomo’s 2018 campaign.[19] While screening committees are not inherently objectionable, one must wonder what the appellate bench would look like if such committees included tenants’ rights lawyers, public defenders, union lawyers, and civil rights lawyers instead of only corporate law firm partners. Even if the screening committees were differently comprised, control of appointments by the governor, an office that is usually more conservative than New York’s voters at large and an individual who is at present fiercely protective of the police and the carceral system, practically guarantees that judges placed on the appellate bench will approach some questions of civil liberties with moderation at best and hostility at worst. In general it creates an appellate bench unwilling to disrupt the status quo in favor of civil rights. Ultimately it is difficult to imagine these processes and conflicts of interest placing judges on the bench who are both representative of New York’s diversity as well as reflective of the popular conscience. These structures reflect the corrosive effect of money in politics, trading the will of political donors for the integrity and independence of New York’s judiciary as a representative branch of a democratic government.
At the federal level, judges to the federal bench are confirmed by the Senate. Senators convene, at their discretion, screening committees to select candidates for nomination to the federal judiciary. As the Peoples’ Policy Project detailed in a recent study, many Democratic senators do not publicly release the members of their screening committees.[20] Among those Senators who make public the composition of their screening committees, the committees’ membership largely mirrors the pattern seen in New York, where partners at corporate law firms and membership within the donor class are pre-eminent.
What’s the solution?
It’s not immediately clear what an ideal form of judicial nomination looks like, or how to eliminate systemic bias or racism within the court system; however to answer these difficult questions is an opportunity for the left to deepen the value of democracy in New York. Most of the civil liberties we enjoy today are a result of the Warren court. Could New York’s current judicial nominating process ever produce a Warren court, or would jurists like Thurgood Marshall and Earl Warren be blackballed by party bosses?
The New York court system created a commission in 1988 (the Williams Commission) to increase racial diversity in New York’s courts, however it is clear after thirty-two years that legislative change and external advocacy are required in order to remedy some of the underlying structural issues. The lawsuit filed by Lopez Torres in 2006 was, as far as I can tell, the last major attempt to reform the judicial nomination process in New York. After the district court and circuit court decisions, other groups, such as the New York City Bar Association, issued recommendations for reforms.[23] Unfortunately none of the recommendations were adopted in the wake of the Supreme Court’s reversal of the district court decision.
Given the way that judicial elections are overlooked by almost everyone, at first glance it seems like a strategic opening for a reinvigorated left in New York. Electing left-wing judges could cost less money and be far less contentious than even local city council races for well-equipped electoral organizations like the DSA and Working Families Party (WFP), if the WFP were able to both maintain its ballot line for the purpose of nominations and work with other left-wing grassroots organizations like DSA to recruit and campaign for promising candidates.
That being said, this whole system should be scrapped because of the bottlenecks created by the governor’s control of the appointment process at the appellate level and the parties’ control of the nomination process at the trial court level. If WFP were to lose its ballot line, as could be the case in 2021, there is no other left-wing political party in New York that could utilize a ballot line to nominate judicial candidates in contested elections against the Democratic party machine. The viability of partisan elections relies on the meaningful presence of opposition parties, which simply do not exist in New York’s cities. Moreover, even if it were possible to successfully elect left-wing judges, they would never be nominated to courts like the Appellate Division or the Court of Appeals by pro-corporate screening committees created by a governor like Cuomo.
Instead, the left should think about reforming New York’s courts generally, as other groups have already called for.[21] New York’s extremely complicated and archaic mess of town and village courts, district courts, borough courts, family courts, surrogate courts, and supreme courts should be consolidated into a three-part system mirroring the federal system and other states like California. The same package of reforms that accomplish this should also include changes to the means of nominating judges. Judges could be nominated by non-partisan merit-based selection committees required by law to include representatives from public interest backgrounds at a ratio fixed to ensure that corporate lawyers are a minority. Members of these committees or judicial candidates recommended by such committees could be elected in publicly-financed elections. Appellate court judges could be nominated by a similar nominating commission as exists for the Court of Appeals, with members appointed by leaders of the senate, assembly, and the governor’s office, with the additional requirement that a majority of the membership of such screening committees come from backgrounds representing the public interest, such as organized labor, civil rights organizations, student-led organizations, educational institutions, and environmental advocacy groups. Retention elections could be instituted for appellate court justices, so that voters would not have to directly elect them, but could revoke their status on the court. These reforms could be accompanied by others, such as the replacement of grand juries with preliminary hearings and a prohibition against striking potential jurors because of their support for Black Lives Matter.[22]
The practice of public interest law depends on a state judiciary that is both receptive to civil liberties arguments and willing to occasionally disrupt the status quo by ruling in favor of progressive reforms. To the degree that New York’s judiciary is ideologically moderate or conservative, the missions of many civil rights organizations are hampered, their resources and efforts are wasted, and the risk of creating bad law is increased. Moreover, any reforms that would increase racial diversity on the bench and reduce or eliminate systemic bias against judges or litigants of color are worthy goals on their face in the name of racial justice and equality under the law. For too long minorities have been disenfranchised by the legal system, and it shouldn’t be acceptable that our process for judicial nominations relies on unconstitutional sham elections. As good as it is that people are paying more attention to the composition of the judiciary at the federal level as the result of Trump’s presidency, we shouldn’t forget our state judiciary: the housing courts, civil courts, and criminal courts that daily decide the fates of hundreds of our neighbors. They are far easier (and far cheaper) to reform in a blue state like New York than the federal bench ever will be.
Notes:
[1] Malia Reddick, Michael Nelson, and Rachel Paine Caulfield. “Racial and Gender Diversity on State Courts.” The Judges Journal. Vol. 48, No. 3. Summer 2009. Accessible at: http://www.judicialselection.us/uploads/documents/Racial_and_Gender_Diversity_on_Stat_8F60B84D96CC2.pdf; see also, “Examining the Demographic Compositions of U.S. Circuit and District Courts.” Center for American Progress. Feb. 13, 2020. Accessible at: https://www.americanprogress.org/issues/courts/reports/2020/02/13/480112/examining-demographic-compositions-u-s-circuit-district-courts/; Alicia Bannon, Laila Robbins. “State Supreme Court Diversity.” Brennan Center for Justice. July 23, 2019. Accessible at: https://www.brennancenter.org/our-work/research-reports/state-supreme-court-diversity.
[2] “Report to the New York State Court’s Commission on Equal Justice in the Courts.” The Judicial Friends Association, Inc. August 31, 2020. Accessible at: https://www.urbancny.com/wp-content/uploads/2020/09/Judicial-Friends-Report-on-Systemic-Racism-in-the-NY-Courts.9.14.20.pdf.
[3]See, e.g., Brian Fallon and Christopher Kang. “No More Corporate Lawyers on the Federal Bench.” The Atlantic. August 21, 2019. Accessible at: https://www.theatlantic.com/ideas/archive/2019/08/no-more-corporate-judges/596383/ (describing how 60% of circuit court judges were once partners at corporate law firms and describing the federal bench as “wildly unrepresentative of the legal profession as a whole”); see also Joanna Shepherd. “Justice at Risk.” American Constitution Society for Law and Policy. June 2013. Accessible at: https://www.acslaw.org/wp-content/uploads/old-uploads/originals/documents/JusticeAtRisk_Nov2013.pdf.
[4] “Judicial selection in the states.” Ballotpedia. Accessible at: https://ballotpedia.org/Judicial_selection_in_the_states. The method of judicial selection has been hotly contested since the United States was first founded, and many models exist across the country. While partisan judicial elections were the norm in the country’s first years, they eroded confidence in the judiciary, which came to be perceived as an object of machine politics, and began to be replaced by other models in the latter half of the 19th century. Interestingly, New York’s courts did not always feature partisan elections of judges; the system was put in place in 1921.
[5] The judicial system in New York needs overhaul, reform, and consolidation generally, as many others have noted (see, e.g., “Member Wall.” Simplify NY Courts. Accessible at: https://simplifynycourts.org/members/).
[6] “Report to the New York State Court’s Commission on Equal Justice in the Courts” at 4.
[7]Id. at 3.
[8] Cody Cutting. “Who Really Picks New York’s Judges?” Brennan Center. November 11, 2015. Accessible at: https://www.brennancenter.org/our-work/analysis-opinion/who-really-picks-new-yorks-judges.
[9]Id.[10]Id.[11]Editorial. “Real Judicial Elections.” The New York Times. Oct. 2, 2007. Accessible at: https://www.nytimes.com/2007/10/02/opinion/02tue1.html?_r=2&.
[12]Id.
[13] These quotes are from a 2003 New York Times story cited by the Brennan Center analysis. See Clifford Levy. “Picking Judges: Party Machines, Rubber Stamps.” The New York Times. July 20, 2003. Accessible at: https://www.nytimes.com/2003/07/20/nyregion/picking-judges-party-machines-rubber-stamps.html?pagewanted=all.
[14] “Report to the New York State Court’s Commission on Equal Justice in the Courts” at 4. The Judicial Friends report notes that Black judges are better represented in elected positions compared to positions appointed by the OCA, governor, or Mayor of New York City.
[15] “Improving Diversity on the State Courts: A Report from the Bench.” Lawyers Committee for Civil Rights Under Law, The Justice at Stake Campaign, Center for Justice, Law and Society at George Mason University. 2009. Accessible online at: https://www.brennancenter.org/sites/default/files/Improving%20Diversity%20on%20State%20Courts%20a%20Report%20From%20the%20Bench.pdf.
[16]New York State Board of Elections et al. v. Lopez Torres et al. 552 U.S. ____ (2008). Accessible at: https://www.supremecourt.gov/opinions/07pdf/06-766.pdf.
[17] Notably, the highest court in New York state, the Court of Appeals, has a legally-mandated merit selection process, created by constitutional amendment in the 1970s. A commission with twelve members, four of whom are appointed by the governor, four by the chief judge of the Court of Appeals, and four by the leaders of the majority and minority parties in the legislature, is required to review applications for nomination to the Court of Appeals and issues recommendations to the governor for appointment. See New York State Constitution, Judiciary Law, Art. 3-A.
[18] Governors have established these committees by executive order as a custom since about 1975.
[19]See “Greenberg Traurig, P.A. PAC.” Federal Election Commission: Campaign Finance Data. Accessed Oct. 15, 2020. Accessible at: https://www.fec.gov/data/committee/C00266585/?tab=spending&cycle=2018.
[20] Emma Steiner, Matt Bruenig. “Democrats Need to Nominate Better Judges.” People’s Policy Project. July 23, 2020. Accessible at: https://www.peoplespolicyproject.org/wp-content/uploads/2020/07/NominateBetterJudges.pdf.
[21] “Simplification & Restructuring Proposals.” The Fund for Modern Courts. Accessible at: https://simplifynycourts.org/the-proposal/.
[22] The Judicial Friends report found that jurors in New York are stricken because of their support for Black Lives Matter or views against police brutality. As the report notes, the majority of people who hold these views are Black or Latino and many are young. Striking jurors because of their support for the Black Lives Matter movement functions to protect police officers from being held accountable to a true jury of their peers and distorts the administration of justice when police officers are defendants. “Report to the New York State Court’s Commission on Equal Justice in the Courts” at 38.
[23] “Recommendations on the Selection of Judges and the Improvement of the Judicial Selection System in New York State.” The Judicial Selection Task Force of the Association of the Bar of the City of New York. December 2006. Accessible at: https://www.nycbar.org/pdf/report/Judicial_Selection_TaskForceReport_Dec2006.pdf.