Federal Decision ‘Strips Away Local Political Power’
BROOKLYN — Last week, Federal Court Judge John Gleeson granted a preliminary injunction declaring New York State’s system of selecting candidates for Supreme Court judgeships, unconstitutional. This decision promises to strip away one of the most important vestiges of power left to the once mighty local political leaders — and at the same time will hopefully promote a more responsible judicial system. This is welcome news, after a year in which New Yorkers witnessed how corruptible their judicial branch can be. However, if Gleeson’s decision is upheld, the state will have some tough decisions to make in selecting judges, one complicated by national events.

Gleeson’s decision takes an honest — and stark — view of New York’s judicial selection process. While the laws of New York State give the voters the right to choose the judiciary, in reality they exercise no such power.

Instead of having the voters choose candidates in a primary campaign, Democratic and Republican Party leaders select candidates at tightly controlled nominating conventions. The dominant party’s candidates then easily win the office.

Gleeson recognized these conventions as a farce, saying: “The plaintiffs have demonstrated convincingly that local major party leaders — not the voters or the delegates to the judicial nominating conventions — control who becomes a Supreme Court Justice and when. The result is an opaque, undemocratic selection procedure that violates the rights of the voters.�

This process is, of course, undemocratic, and frequently results in the election of less than qualified judges. But that’s not even the real problem. The real issue is that the selection of judges in these conventions has become a lucrative payday for New York’s political leaders, as two trials this year showed. In one, the former head of Brooklyn’s Democratic Party, the recently convicted Clarence Norman, allegedly required judicial candidates to pony up as much $100,000 for the race — money that was given to Norman’s choice of campaign consultants. A number of candidates complained that the money was not spent on their campaigns, but rather taken effectively as a payoff.

The payoffs do not necessarily end with an election. In another case showing local political figures using the judiciary as a cash cow even after the election, Brooklyn’s Surrogate Court Judge Michael Feinberg was thrown out of office by the Court of Appeals for a number of acts that directly harmed unsuspecting citizens to the benefit of politically connected attorneys.

Feinberg’s election itself in 1996, which took place in the heat of a battle for power in the Brooklyn Democratic organization, was so flawed that a federal judge ordered additional voting to take place because, in his words, “substantial and widespread� deprivation of the right to vote took place. No re-vote took place, as the ruling was overturned on appeal.

Of course Brooklyn is not the only place to have faced judicial problems. In 2000, a number of top political leaders, including ex-state Senator Guy Velella — who before his conviction was the head of the Bronx’s Republican Party — were widely reported to have financially benefited from similar lucrative judicial assignments. That scandal got quickly swept under the rug.

The two Brooklyn cases this year should have been enough to force state legislators to do something. Unfortunately, they did. The legislature chose to add a second Surrogate Court seat in Brooklyn.

However, the law was passed in such a way as to allow the same Brooklyn Democratic Party organization to hand select the judge, which may lead to the same problems.

With this record, Gleeson’s decision is a good place to start for reform.

However, if the decision sticks and New York State voters are the ones actually choosing the judges in competitive elections, these elections, in part because of new legal developments, may tend to devolve into partisan fights. It has been noted that in other states, like Texas and Illinois, judicial elections have begun to be transformed from relatively genteel affairs to the bare-knuckled issue-oriented fights of regular partisan elections.

In the past, there were rules prohibiting judicial candidates from revealing and publicizing their views on the political and legal issues of the day.

However, in 2003 a federal judge struck down these prohibitions regarding New York judges and also, just this month, the US Supreme Court let stand a ruling overturning similar prohibitions for judicial candidates in Minnesota. For New Yorkers, these new decisions open the way for competitive judicial elections characterized by political rhetoric from the candidates.

This may mean that judicial elections will start to resemble other political campaigns — not something to look forward to. Still, the path to reforming the judicial selection process must start somewhere. Overturning the stranglehold that local political leaders held on the selection of judges was a very positive step in fixing an embarrassing state problem. Judge Gleeson’s ruling may not be the final cure, but New Yorkers can be thankful that at least it is a start.

By Joshua Spivak, attorney and media consultant.

© Brooklyn Daily Eagle 2006
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