Alan Flacks, a political analyst and commentator, circulated an interesting e-mail on the demise of the judicial convention system--the method by which New York State Supreme Court Justices have been selected for nomination and election since 1921.
Here's Alan's analysis in its entirety:
WHITHER THE JUDICIAL CONVENTION
By Alan Flacks
The future of New York's judicial nominating convention is up in the air.
While the New York State Senate passed a bill earlier last year requiring direct party primary elections for State Supreme Court Justices, the Assembly has yet to act. The Assembly might enact a bill to re-establish a judicial nominating convention whereby the convention may designate a candidate using a lower threshold for designation at the convention (such as 25% instead of the 51% as now required) or may choose to run via the petition route. Presently the N.Y. Democratic State Committee has a similar nominating method to nominate State-wide candidates.
The State Assembly's standing Committee on the Judiciary (some of whose members are from the Regular Brooklyn and Queens Democratic organizations) just concluded a series of three hearings to gather testimony on how to resolve this issue. Many organizations, bar associations, public officials, and judges testified, and one thing emerged: there is no unanimity on what to do, and there is still confusion as to what various parties actually said and meant. The gamut ran from appointing all judges to altering the existing system (including making a smaller number of delegates which would tend toward more "boss" rule). However, the attorneys for Lopes Torres and the Brennan Center, the prevailing parties in the Federal lawsuit, made clear that any attempt to circumvent the decision by keeping the convention in some other form could result in further litigation.
In the lawsuit Margarita Lopez Torres et al. vs. N.Y. State Board of Elections et al., Federal Judge John Gleeson found the State schema for selecting State trial justices by the parties' judicial nominating conventions violated the First Amendment in that it essentially denied voters their right to select their candidates. In his order granting a preliminary injunction the judge also asked the parties to brief him on what they feel is a proper and adequate method to get on the ballot and the number of petition signatures per judicial district that a candidate needed to obtain for a direct Primary election. He issued a second order determining those issues, which was not published in the official Federal reporters and is also being appealed. Nobody (outside of those directly involved) paid the second decision much heed as the focus then was on the appeal of his initial order to the Second Circuit Court of Appeals, which affirmed. If the U.S. Supreme Court grants certiorari to hear the appeal of the Second Circuit's affirmance, the "2nd order" may become moot because Defendants will seek to stay the original Gleeson order pending appeal. If a stay is granted, there probably will be judicial conventions in 2007. [The N.Y.S. legislature couldn't possibly do anything immediately because of both inertia and law.]
State Supreme Court justices can be nominated by each party through the same primary system applicable to Civil Court, Surrogate, District, County judges and, outside N.Y.C., Family court judges. However, Judge Gleeson stated that this remedy would apply only if the legislature failed to come up with a constitutionally satisfactory modification to the present nominating convention procedure. As Lloyd McAulay, long active in the cause of judicial selection, put it:
"Those who seek to have the selection of judges taken out of the fingers of the electorate [and place the appointive power in the executive branch of government will find that] concentrated power is more dysfunctional than democratic miasma. There are some who think it better policy to have the selection of those who govern us made by the better informed. The labels apply to those who think this way include 'elitist.' . . . There are a number of practical reasons why it is probably best to have a mixture of elected judges and selected judges [and] the vision of benign aristocratic rule is given the lie by the reality of self-interest as there are no bright-line rules as to where selection is better than election or where election is better than selection."
As to the case in chief ("Margarita vs. Board"), it is unlikely that the U.S. Supreme Court would grant review even though this case deals with the unconstitutionality of a state statute because the Court is taking fewer such cases and expanding the "Federal abstention" doctrine where the remedy would be legislative. However, James E. d'Auguste, one of the attorneys assisting on the defendants' appeal, feels that the Supreme Court will grant certiorari as this raises important issues of Federalism and separation of powers since states should decide the time and manner of selecting their officials.
Final briefing is due January 22, 2007.