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As this series of articles demonstrates, judicial selection is a hot topic in many states right now, including New York. In Tennessee, the governor rejected a panel of supreme court nominees and when the Judicial Selection Commission refused to allow members of the rejected panel to re-apply a “firestorm” erupted.1 Debate rages in Missouri, where critics of the Nonpartisan Court Plan argue that it allows unaccountable, unelected elites to dominate the selection process.2 Florida reformed its Judicial Nominating Commission to reduce the influence of the state Bar Association.3

In 2006, a federal district judge overturned New York’s system for selecting trial judges.4 Upholding the preliminary injunction, the United States Court of Appeals for the Second Circuit concluded, “through a byzantine and onerous network of nominating phase regulations employed in areas of one-party rule, New York has transformed a de jure election into a de facto appointment.”5 The U.S. Supreme Court granted certiorari; oral arguments took place on October 3.6

The lead plaintiff, Margarita Lopez Torres, is a Brooklyn Civil Court judge originally elected with the support of the local Democratic organization. Party leaders directed her to hire a certain local party activist as her law clerk. Judge Lopez Torres refused and was warned that if she aspired to become a Supreme Court Justice “the party leaders would not forget this,” and without their support she would not succeed.7 But she was re-elected to the Brooklyn Civil Court, defeating a party-backed candidate in the primary election and receiving more votes in the general election than any Democratic candidate for Supreme Court Justice in Brooklyn. Despite her obvious popular support, Judge Lopez Torres failed four times to obtain her party’s nomination for a Supreme Court seat.

The New York Constitution requires that Supreme Court Justices be popularly elected.8 To protect against perceived threats to judicial independence, in 1921 reformers devised “a three-part scheme that combines a primary election, a nominating convention, and a general election.” First, party members choose judicial delegates in a primary election. The state is divided into twelve judicial districts, which are subdivided into assembly districts (between nine and twenty-four, depending on population). The parties decide how many delegates to allot each assembly district. Every delegate slate must gather 500 signatures from party members residing in that assembly district, and each party member may sign only one slate’s petition. “Consequently, the number of available signatories shrinks each time a party member signs a designating petition.” Because petition signatures are routinely challenged and disqualified, “in order to run a full complement of delegates, a judicial candidate must gather at least 9,000 signatures (in the judicial district with only nine assembly districts) and as many as 24,000 signatures (in the judicial district with 24 assembly districts).” For example, between 1999 and 2003, in four judicial districts, 87.3% of the delegate races were uncontested and the qualified slates were “deemed elected,” so “voters did not even see the delegates’ names on the ballot, much less have the opportunity to vote them up or down.” The primary ballot does not indicate which judicial candidate a slate supports, so the candidate must somehow communicate this information to voters.

Within two weeks of the primary election, the parties hold nominating conventions (“perfunctory, superficial events,” according to the district court). The delegates are technically uncommitted, but the court found that “a candidate who lacks the support of her party’s leadership has no actual opportunity to lobby delegates.” The time frame “is unrealistically brief,” and delegates are firmly controlled by party power-brokers: Between 1990 and 2002, 96% of nominations were uncontested. Conventions typically last less than an hour, where candidates were nominated and confirmed by delegates who cannot pronounce their names.

Single-party rule is the norm in many judicial districts, making the general election “little more than a ceremony.” Between 1990 and 2002, more than half of general elections were uncontested in eight of the state’s twelve judicial districts. Such is the case in Judge Lopez Torres’s Brooklyn, where winning the Democratic Party’s nomination is tantamount to winning the general election.

Judge Lopez Torres and others challenged the system, claiming that it violated their freedom of association. After a thirteen-day hearing with testimony from twenty-four witnesses and 10,000 pages of exhibit evidence, the district court found that “the plaintiffs are likely to succeed on their First Amendment claim” and granted a preliminary injunction eff ective after 2006. Until the state legislature enacts a new process for selecting supreme court justices, the district court ordered that nominations should take place by primary election.

A unanimous panel of the Second Circuit upheld the district court. The U.S. Constitution does not “require[] a state to provide for the popular election of judges,” but “[i]f the State chooses to tap the energy and legitimizing power of the democratic process, it must accord the participants in that process the First Amendment rights that attach to their roles.”9 These rights, analyzed jointly, include “the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes eff ectively.”10 Finding that the law severely burdens these rights, the court applied strict scrutiny.

The court rejected the proposition that the First Amendment does not apply to indirect delegate primary elections, and that nominating conventions are per se constitutional.11 Because “New York’s delegate selection process is one of public election,” and the “judicial delegates hold no party leadership position and exercise no party authority other than to act, in the ideal, as conscientious proxies for the communities that elected them,” the court concluded that the associational rights of the parties do not outweigh those of New York voters and candidates.

Applying a clear error standard of review, the court upheld the district court’s factual finding that the system’s burdens are severe. Nor was the court persuaded that alternative means of ballot access (e.g., as an independent or write-in candidate) saved the challenged scheme. The defendants suggested several state interests that the system protects: parties’ associational rights; racial, ethnic, and geographical diversity; and judicial independence. But the court found that the law was not narrowly tailored to serve these interests. A party’s associational rights can be protected, for example, by requiring a one-year affiliation requirement for primary voters. The court doubted that the system promotes racial, ethnic, or geographic diversity. As to judicial independence, there are “less burdensome means to serve that end,” such as public financing of judicial campaigns or “a narrowly tailored law preventing a judicial candidate from campaigning based on her views ‘for or against particular parties.’”12

Finally, the defendants complained that the district court should have devised a new system, but this is “inviting the District Court to act as a one-person legislative chamber—precisely what is forbidden.” Finally, the Second Circuit found that the district court did not ignore legislative intent when it ordered that primary elections be held until the legislature re-wrote the law, because “nominations for other judicial offices, such as Civil Court Judge and County Court Judge, are made by primary election.”

The New York Legislature has not adopted legislation to change the current scheme. By agreement of the parties, however, nominations will be by judicial convention again in 2007.13 Meanwhile, as mentioned above, oral arguments before the Supreme Court of the United States took place on October 3. Judicial selection is an increasingly visible issue nationwide, and the U.S. Supreme Court’s decision will be watched carefully in many jurisdictions far beyond the Empire State’s borders.

* Benjamin L. Ginsberg is a partner at Patton Boggs LLP. John Hilton is an associate at the firm.

 

Endnotes

1 Ken Whitehouse, “Attorney General backs Judicial Selection Commission,” Nashville Post, 7/26/2006, available at http://www.nashvillepost.com/news/2006/7/26/attorney_general_backs_judicial_selection_commission (last accessed 9/28/2007).

2 See, e.g., Thomas Walsh & William G. Eckhardt, “Our judges are selected behind closed doors,” Southeast Missourian, 7/23/2007, available at http://www.semissourian.com/story/1232631.html (last accessed 9/28/2007); Show Me the Judges, Wall Street Journal, 8/30/2007.

3 2001 Fla. HB 367, codified at Fla. Stat. § 43.291.

4 Lopez Torres v. New York State Bd. of Elections, 411 F.Supp.2d 212 (E.D.N.Y. 2006).

5 Lopez Torres v. New York State Bd. of Elections, 462 F.3d 161, 200 (2nd Cir. 2006).

6 New York State Bd. of Elections v. Lopez Torres, 127 S.Ct. 1325 (Feb. 20, 2007).

7 The Supreme Court of the State of New York is a trial court of general jurisdiction. The court of appeals is the highest court in New York State.

8 N.Y. Const., art VI, § 6.

9 Quoting Republican Party of Minn. v. White, 536 U.S. 765, 788 (2002).

10 Quoting Anderson v. Celebrezze, 460 U.S. 780, 787 (1983).

11 Citing United States v. Classic, 313 U.S. 299 (1941); Terry v. Adams, 345 U.S. 461 (1953); American Party of Texas v. White, 415 U.S. 767 (1974).

12 Quoting Republican Party of Minn. v. White, 536 U.S. 765, 776 (2002).

13 Carol DeMare, Judicial Conventions Face Test, The Times Union, July 23, 2007.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].