The Politics of Judicial Selection

...And the state's highest court does not have a great deal of patronage to offer anyway...

...Polls have consistently shown that voters favor retention of the elective system?more strongly upstate than in New York City, but overwhelmingly in both regions...

...Unfortunately, the Court of Appeals is least in need of reform...

...Many observers suspect that a majority of those who cast their ballots for the amendment would like to see it defeated in November...

...Finally, the "retention election" would have advanced the principle of direct public participation and accountability by giving voters not merely a genuine choice?yes" or "no"—rather than a charade, but the means of making an intelligent decision...

...First passed at a special 1976 session called by Carey, this would substitute merit nomination and gubernatorial appointment for popular election of the seven judges of the Court of Appeals, the state's highest judicial body...

...Its mere handful of judges are chosen in statewide contests that attract serious interest and good press coverage...

...The New York trial bench is accordingly crowded with former state legislators, city councilmen, borough presidents, county executives, assistant district attorneys, and other weary politicos, who "retire" there like horses to pasture...

...Enthusiastically backed by good government groups, major bar associations and the press, Carey's proposal nevertheless fell victim to the legislative axe...

...New York, where the issue was among those left unresolved by the just-concluded longest session of the State Legislature, offers a case in point...

...Second, the screening mechanisms and the two-year probationary period would have gone a long way toward insuring a competent trial bench...

...At present, candidates for the more than 2S0 civil and criminal judgeships of the New York State Supreme Court are nominated at judicial district conventions...

...At the session just ended, it did give final approval to a parallel amendment...

...Modeled on a 1940 Missouri attempt to thwart the corrupt Pendergast machine, this hybrid procedure is currently employed in a number of states throughout the country...

...This year the Republicans wanted to postpone the second vote of approval required for constitutional amendments to allow for the possible election of a Republican chief judge in 1978, when the incumbent reaches the mandatory retirement age...

...Still, the proposal had undeniable advantages...

...That record would have been evaluated by the nominating panel, which was to issue a public report before balloting-day...

...In a state whose last elected governor served into a fourth term, Republican lawmakers, who control the upper house, were not inclined to grant a first-term Democrat unbridled appointive authority over New York's Supreme Court...

...Yet partisan politics was not the sole factor in the defeat of the merit-selection amendment...

...First, it would have inhibited the most flagrant hanky-panky by vesting primary responsibility for judicial selection in the state's highest and most visible official, where its exercise could be scrutinized...

...Press coverage of trial court races is skimpy, and ethical constraints prevent the nominees from waging meaningful campaigns...

...Patronage is the fuel that keeps the party machine running, and Albany lawmakers, many of whom came up through the ranks and remain dependent on the clubhouse for their political livelihoods—not to mention the judgeships they covet when their legislating days are over?were not about to bite the hand that feeds them...

...Because upstate Republicans would presumably opt for the former, the Governor and other Democrats opposed the plan, and it was rejected...

...With an aroused press looking over their shoulders, lawmakers who wanted to make a token nod to the principle felt free to do so, since the status quo would not be upset...

...If the system has nonetheless produced some excellent jurists, as its defenders claim, that can be chalked up more to chance than design...

...And there it is his political—not his legal or judicial—skills that matter most...

...Once again, therefore, victory generally hinges on party affiliation, with Democratic contenders winning in such Democratic strongholds as New York City, and Republicans in the traditionally GOP upstate areas...

...In general, the caliber of the New York Supreme Court is disappointing—a situation that has been underscored of late by a series of provocative press exposes...

...As matters stand, despite the trappings of the voting booth, too often judges are appointed by local party leaders?who are unelected and therefore unaccountable...

...Against this background of political deals, judicial mediocrity and increasing public concern, Governor Hugh Carey, as part of a wide-ranging court reform package, last year unsuccessfully proposed amending the State Constitution to provide for so-called "merit selection" of state Supreme Court justices...

...Moreover, with the recent introduction of direct primaries for Appelate nominations, clubhouse control has become largely a thing of the past...

...All appointments would have subsequently been subject to confirmation by the State Senate...

...Even where the voters are not handed a fait accompli, it is almost impossible for them to make an informed decision on the candidates...

...Two years after taking office and Joel M. Gershowitz, a past contributor, is a New York attorney...

...a subsequent "no" vote would have removed a justice from the bench...

...The legislature, though, has not turned its back entirely on merit selection...

...The overwhelming majority of New York State Supreme Court justices that have been elected in the past few years have run on both Republican and Democratic party slates...

...But the delaying tactic failed and the amendment will appear on the November ballot for voter ratification...

...The delegates, chosen in district primaries easily dominated by the regular political organizations, are typically party workers and patronage jobholders who vote as instructed...

...That may well happen...

...at the end of his 14-year term as well, a justice would have had to run in a "retention election"—not against an opponent, but on his record...

...This, plus the accepted practice of making cross-endorsement deals, enables Democratic and Republican leaders to reward the faithful and leaves would-be insurgents little room to challenge official nominees...

...It is of course absurd to suggest, as some have done, that Carey's plan would have eliminated politics from the judiciary...

...As an alternative, GOP leaders put forth a "local option" plan that would have offered voters in each judicial district the right to choose between continuing to elect their Supreme Court justices or having them appointed under the Carey scheme...

...No doubt this attitude, as one commentator noted, reflects "a healthy determination among free people to keep in their own hands control over the processes whereby their lives, liberties, and properties are disposed...

...The last perhaps explains why the amendment was acceptable to a large number of legislators unable to abide merit selection of the Supreme Court...

...Apparently, there is a widespread feeling that selection of judges is somehow undemocratic and elitist...

...But it also reflects, I think, a misconception of the nature of representative democracy (after all, the whole Federal judiciary has been appointed by the President since the founding of the Republic), and a failure to recognize that the real choice to be made is between one method of selection and another...

...Indeed, at least one Republican has explicitly accused the Governor of having made a "power grab...

...National Reports THE POLITICS OF JUDICIAL SELECTION BY JOEL M. GERSHOWITZ The question of whether state-level judges should be elected or selected is one that legislatures have grappled with off and on since the 1830s...

...Pressure from reformers has in recent years given it new urgency, but the answer remains elusive...

...Control of the local courthouse is a major source of patronage (accounting for more than 1,000 jobs in New York City alone...

...Under the proposal, the governor would have selected judges from lists of nominees compiled by a nonpartisan screening committee of lawyers and laymen...

...Since nomination is so often tantamount to election, the only consequential assessment of a candidate's qualifications takes place at the clubhouse...