We were quite unimpressed and displeased with the December 2006 report issued by "The Judicial Selection Task Force of the Association of the Bar of the City of New York." In that thirty-three page document, entitled "Recommendations on the Selection of Judges and the Improvement of the Judicial Selection System in New York State," the City Bar repeatedly opines that the electorate is "uninformed," judges can be "bought" (or "influenced" by campaign contributors), and, that our political leaders wield a bit too much control over the selection of judicial candidates (and the election of judges). As a result, the City Bar suggests that a "commission-based appointment system" be implemented.
As the report notes:
The Task Force firmly believes that the only effective means of ensuring the uniform selection of highly qualified candidates for judicial office is to provide that those candidates will be selected by an appointing authority from among a limited number of candidates rated as "most qualified" by truly independent judicial screening commissions. Only by doing so can all candidates compete on a level playing field, regardless of wealth or political connections. Only then can selections be reliably made from the most qualified candidates. And only then can we take politics out of the selection of officials whose function in our democracy is to make decisions that are, as Alexander Hamilton put it, free of the "disposition to consult popularity: so that we may truly "justify a reliance that nothing would be consulted by the Constitution and the laws."
According to the City Bar, judicial appointments should be subject to a screening committee or "commission" comprised of some 15-21 members. We are expected to believe that these individuals would not be motivated by financial or political self-interest (or other agenda), yet each appointee would be selected by some political entity or being. "The Chief Judge, the Governor, the presiding Justices of each Appellate Division … and the highest ranking members of each party in the Senate and in the Assembly," would each designate an individual to serve on this commission.
Using the commission's preapproved pool of candidates, the Governor would select appointees to the Supreme Court (outside of New York City), the Court of Claims and the Appellate Divisions. The Mayor of the City of New York would appoint local Supreme Court, Family Court, Surrogate's Court, Civil Court and New York City Criminal Court judges.
How's that for transparency and ending the concentration of power in the hands of a few?
We believe it is contrary to fundamental democratic principles to deny "the people" a direct voice in selecting those who should serve as judges or seek other political office. Nor do we believe it is appropriate to relegate the screening process to an elite group.
We refuse to accept the report's premise that voters are incapable of discerning "intellectual capacity, integrity, fairness, independence, experience, [and] temperament," nor subscribe to the stated belief that the electorate is "poorly informed about the qualifications of judicial candidates for office and are not well suited to evaluate the significance of those qualifications (or the lack of them)." If we were to accept the Task Force's position that citizens are incapable of identifying "qualified" candidates for a particular office, then all candidates for any position would arguably need to be subject to some "commission's" imprimatur or scrutiny. (After all, can the average voter truly appreciate the range of attributes and life-experiences required to be an effective Mayor, Governor, or President?)
The voters' ability to make an informed choice should not be replaced or shrouded by "clubby" secrecy of any kind, and, if ignorance or disinterest prevails, then corrective measures must be implemented on a systemic basis to energize the electorate, foster voter participation, and address any existing "disconnects" or dysfunction.
We do not believe the rights of concerned citizens to participate actively in the democratic process should be foreclosed, particularly in the manner now being advocated by the City Bar.
To download a copy of the Task Force's report, please click on the following link: http://www.nyrealestatelawblog.com/Blog~Judicial%20Selection%20Task%20Force%20Report-Dec.%202006.pdf