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August 28, 2019 Sidebar

Who Judges the Judges?

The courthouse is the one vestige of patronage still available to the local pols, especially in the state system.

Kenneth P. Nolan

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It was a landslide. I was now an elected delegate from the 51st Assembly District to the Democratic Party’s Judicial Convention of Kings County. You may have missed my upset victory on social media since this was the early 1970s when my communication was limited to a rotary phone, and moms contacted their kids, not by text, but by screaming out a window, “Time for dinner!” I was a determined reformer, and we ran against the hated Democratic establishment so that we could select judicial candidates based on experience and integrity, rather than connections and money.

Brooklyn Supreme Court justices were nominated in the same fashion as presidential candidates at a convention with delegates voting from each assembly district. Instead of a huge hall with television cameras and celebrated newscasters, however, ours was in a grubby courtroom in the state supreme courthouse. At the convention, I chatted with a longtime friend of my parents, an important cog in the Democratic machine, until he was handed a slip of paper. “They just told me who to vote for and what to say,” he said without irony.

The meeting began with the chair asking for nominations. One after another, delegates rose and read from their slips of paper. “I nominate John Smith for Supreme Court justice,” who was then seconded. “All in favor. . . . ” We reformers—maybe 10 percent—repeatedly voted “nay.” Not even close. After a half-hour, it was over. I was upset, disillusioned. This democracy stuff was hard work.

Elections Are a Formality

The boss of the Democratic Party still controls every supreme court (trial court) judgeship. Since Brooklyn has been a one-party borough forever, elections are a formality. Those nominated by the Democratic Party always win. Indeed, my neighborhood of Bay Ridge once elected Republicans, but decades ago, we were gerrymandered so that my home is part of an assembly district in Coney Island, four miles away, attached by a sliver of park land. The local civic association sued after Bay Ridge was sliced into different districts to dilute Republican voting strength. The supreme court justice who tossed the case owed his job to the Democrats as did the appellate court judges who denied the appeal. This reinforced what I learned from my grandmother Maysie, a proud supporter of Al Smith, Jimmy Walker, and Tammany Hall—it’s not what you know; it’s who you know.

In New York, the system is a joke. Some judges are appointed; some elected. The governor appoints a bunch; the mayor, others. Some are elected county-wide; others in smaller districts. Some have 10-year terms; others have 14 or as little as four or five. Some are not even lawyers, nor college grads. Why not select all judgeships—civil, criminal, family, surrogate, appellate, town, village—in one manner with uniform qualifications and term? Too logical, too easy.

In 2004, New York State’s election law was challenged on constitutional grounds that it did not allow voters the right to choose judicial candidates and presented insurmountable obstacles to candidates without established Democratic or Republican Party support. I guess it was a coincidence that the good government groups, supported by some large law firms, challenged the law once demographics changed and minorities became a majority in New York City. The Eastern District and the Second Circuit ruled the law unconstitutional. The Supreme Court overruled, upholding, yet criticizing, the law. Quoting Justice Thurgood Marshall, Justice John Paul Stevens wrote: “The Constitution does not prohibit legislatures from enacting stupid laws.”

The courthouse is the one vestige of patronage still available to the local pols, especially in the state system. The leader controls the appointment and/or election of judges and, almost always, rewards loyal supporters. “Who am I going to appoint? My enemies?” one Brooklyn surrogate responded when asked if he would favor friends. Judges hire law clerks and assistants, generally on the recommendation of the party. It’s no wonder a judge once greeted the Democratic leader with “Hi, boss.”

Should we then use the federal system, in which senators and presidents name judges for lifetime appointments? There’s no question that, for the most part, federal judges are of better quality. The federal bench is more prestigious with superior resources than the perennially underfunded state courts. Yet, the federal system is just as political as the state—cleaner, less obvious perhaps, with candidates given the imprimatur of the bar, including the ABA. But there’s no question that senators seek judicial candidates who reflect their politics. And it doesn’t hurt to have sat next to the senator in law school. “I’ll tell you how I got appointed,” an old federal judge told me decades ago. “I knew Rockefeller (governor), Lindsay (mayor), and Javits (senator).”

The days when the Senate will support judges solely based on qualifications—like Antonin Scalia (98–0) or Ruth Bader Ginsburg (96–3)—are long gone. Any judicial selection is now part of the partisan venom that is our nightly entertainment. Who’s to blame for the degradation and politicization of judges? For the loss of judicial independence? For the vicious and false attacks on decent men and women? You are. Yes, you. When the feckless elected officials smeared judicial candidates, you were silent. And when these tactics were successful in having a hated nomination withdrawn, or in selecting your candidate, you rejoiced. So this noxious behavior became part of the process—ruthlessly and incessantly used by both parties—and it doesn’t matter if it’s the Supreme Court or some local housing court judge. The genie can’t be put back in the lamp.

So what to do? Couldn’t we at least transition to an appointment system that would eliminate costly and divisive elections? If such guaranteed that judges were selected based on ability rather than politics, it would be a no-brainer. Yet, all that does is remove the decision from the voters and place it in the hands of a few educated, upper-middle-class lawyers. Hey, those are my peeps, but I’ve never seen a nurse or a firefighter on any of the bar panels vetting candidates. Just as I believe in the jury system, I, too, hesitate to deprive voters of a choice. I realize the average citizen will select based on party or whether they have a similar last name. As I learned at that farce of a judicial convention generations ago, democracy often produces results that turn my stomach.

Is going to a purely appointed system merely replacing one bad choice with another? Our last presidential election proved America is divided. That’s a nice way of saying that we despise each other. Will eliminating elections, however flawed, simply further this chasm, further the belief that the ordinary mail carrier’s judgment is not as valuable as that of a partner at a white-shoe firm? That the elite dictate results? Aren’t elected judges more reflective of the community—racially, sexually, religiously, and economically?

My Solution (with Caveats)

If I were king, all judges would be selected on qualifications, experience, and demeanor. Unless, of course, you grew up in Brooklyn. Then you’d go to the top of my list. My solution is simple: keep the federal system and let the states decide. And if this includes messy, dirty elections, well, we’ll survive (I hope).

Some caveats:

  • All judges must be members of the bar and have practiced for at least 10 years.
  • Terms in office must be for at least 15 years. This promotes judicial independence.
  • Requiring judges to step down at age 65 or 70 is antiquated. Any mandated retirement should be no earlier than 75.
  • Candidates must be evaluated by local bar panels, which should include non-lawyers. Someone who walks a beat probably can’t evaluate an appellate brief, but she certainly can determine if the candidate has the requisite temperament and grace.
  • Include lawyers who actually practice in the court to be filled. No matter how distinguished, lawyers who practice only in federal court have little appreciation of the qualities necessary to handle 50 motions every Friday morning in an overwhelmed state trial court.
  • Do a thorough investigation. When I was on the judicial committee of the Brooklyn Bar, we worked with the New York City Bar to analyze documentation and interview adversaries and judges, as well as the candidate. We learned that some owed back taxes, were subject to disciplinary complaints, or were skilled lawyers who also coached peewee soccer. Not all who came before us were brilliant legal theorists or even that smart—especially the guy who viewed the bench as a form of retirement. “I’m tired,” he admitted as the reason for his application. But we ascertained who was qualified or not.
  • The panel should publicize its inquiry, requesting comments from the bar and public, which can be anonymous—especially important when sitting judges are up for assessment.
  • Findings should be widely disseminated, along with the rationale. The more transparent the process, the more confidence in the result. Ratings should be “well qualified,” “qualified,” or “not qualified.” The ABA model is a good one to follow.

If you want to reform the system and eliminate invective and slime, start with yourself. Resist the cowardly temptation to anonymously post vitriol and hate. Be better than that: be dignified; be respectful.

Kenneth P. Nolan

The author, a senior editor of Litigation and the author of A Streetwise Guide to Litigation (ABA 2013), is counsel to Speiser Krause, Rye Brook, New York.

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