A decade ago, Margarita Lopez Torres tried to change how judges are elected in New York. A trailblazing civil court judge in Brooklyn, Lopez Torres wanted to move up to the state Supreme Court – the next leg up on New York’s judicial ladder.
But getting a promotion, as Lopez Torres learned, doesn’t always have much to do with acumen or temperament. The Brooklyn Democratic boss at the time, Vito Lopez, didn’t like her. To even get the nomination, he told her she would have to hire his daughter as a law clerk.
Year after year, she was rejected at an annual judicial convention where elected delegates rubber stamp the Democratic Party’s choice for the state Supreme Court. She decided to sue the state Board of Elections, charging that voters have no real say in judicial elections. The long-shot case found success: In the District Court and the Second Circuit, Lopez Torres won, and the case went all the way to the U.S. Supreme Court.
There, the justices ruled overwhelmingly against Lopez Torres, arguing that New York’s arcane and inaccessible system was not a violation of the First Amendment. Justice John Paul Stevens, in his brief concurrence with the majority, quoted Thurgood Marshall: “The Constitution does not prohibit legislatures from enacting stupid laws.”
Indeed, it does not. But in 2019, we have an unprecedented opportunity in New York to bring real change to our sclerotic, antiquated judicial system, the last vestige of machine politics in our city and state. With an emboldened Democratic majority in the state Senate, it’s time to reform how we pick judges and consolidate a labyrinthine court system.
Few New Yorkers understand the nature of the judicial system, even as they come into contact with it. Within the five boroughs, criminal and family court judges are appointed by the mayor after going through a screening process and being recommended by the Mayor’s Advisory Committee on the Judiciary. Civil court and state Supreme Court judges, however, are elected.
Civil court elections are fairly straightforward. While they tend to not be competitive, candidates campaign in typical primaries for 10-year terms. Since the city is largely Democratic, winning the primary in most neighborhoods is tantamount to victory. In these low-turnout, low-information elections, the judicial candidates with the backing of the party machine or prominent elected officials usually win.
If a civil court judge, once elected, wants to become a state Supreme Court judge – perks include a higher salary and an ability to serve past the mandatory retirement age of 70 – the process gets murkier. As Lopez Torres found out, New York is unique in America by electing certain judges without a normal primary system. Democratic candidates cannot vie against each other in an open election for the state Supreme Court.
Instead, obscure judicial delegates are elected from each state Assembly district and go to a judicial convention in the judicial district where they reside. Few voters know who these delegates are or which judges they intend to support. Contested primaries for judicial delegates are exceedingly rare.
New York state, confusingly enough, is divided into 12 judicial districts. At these conventions, the delegates select Democratic nominees for the Supreme Court. Party bosses can stage manage the conventions and outcomes are often preordained. In largely Democratic areas, once the convention nominates a Democratic judge, that judge is all but assured elevation to the Supreme Court.
Throughout the city and state, this has given rise to a culture of politically-connected judges of varying quality. In Queens, an unusual number of judges are related to prosecutors in the district attorney’s office, creating conflicts of interest that put defendants at a disadvantage. Judges have also been at the mercy of party bosses who help elect them and later extort them for political favors.
Eliminating sham judicial conventions altogether is an easy first step the new legislature could take. By passing a constitutional amendment, Democrats in the Assembly and Senate could at least excise this strange ritual from New York politics, which has no equivalent in most others states.
A constitutional amendment could also consolidate New York state’s bizarre, unwieldy court system. There are 11 trial courts in New York, but only one in California, a state twice as large. This system creates many challenging hurdles for anyone who has the misfortune of coming into contact with it.
Divorces, for example, are judged in state Supreme Court, while domestic violence, child custody and maintenance of divorce agreements fall into the jurisdiction of Family Court. In New York, a family will have to go to multiple courts, pay multiple fees and take extra time off work just to navigate the logistical hurdles.
The Legislature should follow the recommendations of the New York City Bar Association, which has put forth a proposal to consolidate most of the lower courts into a Supreme or District Court, cutting down on the numbers of places a plaintiff or defendant has to go.
If judicial conventions, relics of the Tammany Hall era, are eliminated and the courts are consolidated, what is to be done next? Should state Supreme Court justices simply be elected in primaries like civil court judges? That would be the easiest answer, but it would not greatly reduce the role party bosses and their apparatchiks play in picking judges.
As the Fund for Modern Courts argues, in the era of Citizens United, judicial elections across the country have become expensive affairs, and newly-elected judges can become beholden to big donors. Campaign finance reform (a public matching funds system like we have for New York City candidates) can reduce some of their influence, but any amount of money can be corrupting.
Better to move to a full appointment system and let civil and state Supreme Court judges ascend to the bench like their colleagues in criminal and family courts. A merit-based appointment process, used in exclusively 16 states, would allow the selection of judges who do not have to kowtow to political bosses and their allies.
The state Legislature, particularly the state Senate, can lead the way. Judicial reform has never interested Gov. Andrew Cuomo, but Democrats can push him there. Transformation of our state is finally possible, and Democrats should not squander the opportunity.