Politics permeates New York’s judiciary
Politics permeates New York’s judiciary
New York City’s famously long ballot can leave many feeling a little overwhelmed. The top of the ticket gains the most attention with races for president, Congress and mayor. But the exceptions are oft-overlooked races for judges, whose high position on the ballot belies the generally low-information nature of the races. Even self-described politicos and civically engaged voters will admit when they head to the ballot box, they know very little, if anything, about the judicial contests. But often in New York City, these races are decided well before voters have a chance to weigh in. In a city where the once-powerful rule of party bosses has been steadily waning, judgeships remain one of the last strongholds where party leaders can flex their influence. Even today, to get on the bench, potential judges have to be willing to play the game.
In Democratic-controlled New York City, judicial elections are like any other election in that they are pretty much decided in the primary, with the exception of perhaps Staten Island. But that’s where the similarities end. Judicial elections are even harder to run than your average City Council or state legislative race. Countywide judicial races are expensive, fundraising is more difficult due to ethics restrictions on political campaigning and candidates aren’t allowed to take political positions or make campaign promises that could be seen as bias in future decision-making. “Judicial politics, and judicial campaigns, look nothing, nothing, nothing like normal campaigns,” said Assembly Member Robert Carroll, who has long pushed for judicial reform.
But we have elective judges, so how do they win their races? The easiest way is to play politics. Long before candidates run to become judges, they have to attend the right political fundraisers and events hosted by Democratic clubs – schmoozing district leaders, party functionaries and other political leaders who can advocate to put them on the bench.
“It is 100% politics. It is 0% merit and democracy.” – Brandon West, former president of the New Kings Democrats
For many of them, the ultimate goal is getting a Supreme Court spot. Now in New York, Supreme Court isn’t the state’s top court – that’s the Court of Appeals – but it pays over $200,000 a year and the cases are important, like felony crimes and high-level civil cases. Plus, serving on Supreme Court is the only way to get appointed to the influential Appellate Division. Getting there takes a lot of time and planning, and it’s a heck of a lot easier by playing the game. “It is 100% politics, it is 0% merit and democracy,” Brandon West, former president of the reform-minded New Kings Democrats, said of the party’s nomination process. He recalled a friend from law school who attended a meeting to help those interested in becoming judges. “They essentially spent the whole time saying, join a political club, figure out who the political leadership is, talk to those folks,” said West, who is currently running for City Council. “That was the most important thing in terms of the process of becoming a judge, because all these decisions are done behind closed doors.”
A New York Focus report from late last year shed light on the donations that Supreme Court justices had given to local political leaders and the party over the years before becoming Supreme Court justices. It ranged from a few thousand dollars to over $20,000. But many of those interviewed for this piece said that the donations themselves aren’t what get potential judges noticed, they’re more of an entry fee to even be considered for a judgeship. Those who don’t pay the fee often don’t even get considered, so those who don’t have the money, time or desire to get involved in politics traditionally don’t get considered. “Democratic clubs survive off of these fundraisers from judges,” Manhattan district leader and City Council candidate Corey Ortega said of his borough. “It doesn’t get you any more access, but if you don’t show up and if you don’t pay, you will not get any access.” Although judicial candidates are restricted in how much money they can give in political donations, no such restrictions exist for attorneys before they declare, which is why the donations are often spread out over many years.
In Queens, Rep. Gregory Meeks, the party boss, still has a lot of say over who gets the party’s support. While he listens to different groups for recommendations, those groups have to make sure that they’re in good with the party. “I have to say that I have a really good relationship with the county leadership,” said Ali Najmi, vice president of the South Asian and Indo-Caribbean Bar Association of Queens. He noted that several of their members have been considered for judgeships, including the first South Asian judge elected to the Supreme Court in Queens, and that the county party made it happen. This year, a Guyanese American member of his bar association was nominated by the Queens Democratic Party for a Civil Court judgeship. Najmi said there still exists a need to join groups, get politically involved and receive the party’s blessing. “Should it be necessary? Probably not,” Najmi said. “But then there’s the reality of our politics. And a lot of great judges have been selected and elected through the current process.”
Thomas Oliva, president of the Latino Lawyers Association of Queens County, said that his organization every year speaks with Meeks and makes recommendations about who the county should back to become judges. Sometimes, those recommendations are taken, sometimes they’re not. “I’d like to think that based on our past history with Congressman Meeks, that you know, there will be openings going forward,” Oliva said of this year’s Civil Court endorsements, which did not include any of his members. He said that anyone is free to run in a primary, but said it “sounds about right” that many people, essentially, wait their turn for an endorsement from the county party.
“Can someone still run and challenge the Democratic nomination? Hell yeah,” Ortega said of Manhattan. “Is it frowned upon? Yes.” He said the borough has “unspoken rules” about the timing of judicial runs, and the expectation is that candidates generally wait their turn if they’ve got the right relationships and have been deemed qualified by the party’s independent screening panel. One of the main exceptions, Ortega said, is if a candidate is able to raise a lot of money on their own.
“Democratic clubs survive off of these fundraisers from judges. If you don’t show up and if you don’t pay, you will not get any access.” – Manhattan district leader Corey Ortega
This hasn’t stopped candidates from running either municipal or countywide primaries against the party backed candidate, particularly in Brooklyn. Judges Elena Baron, Rachel Freier and Odessa Kennedy are just a few examples of candidates who won without the support of the Brooklyn Democratic Party in recent years. But having the strong backing of the local county party, through relationships forged through years of political engagement, provides certain advantages. The party and local Democratic clubs can help with petitioning, fundraising and will include judges on their flyers alongside more well-known candidates, which is important given how little is known about most judges on the ballot.
The most criticized part of New York City’s judicial election process is judicial conventions to nominate candidates for Supreme Court. Instead of running candidates in a primary, Democrats vote for judicial delegates who then attend a convention to nominate the actual candidates for the general election. Usually, delegates are party insiders – members of Democratic clubs, district leaders, committee members and even elected officials. Without a normal party primary, these judicial delegates – who often just rubber-stamp the will of party leaders – nominally vote on who is put on the ballot for Supreme Court. By the time the general election comes around, these Supreme Court candidates often don’t have Republicans running against them. Sometimes, the Democrats even appear on the Republican line too, meaning voters have little to no real input on who is elected.
The judicial convention process has been widely criticized for well over a decade. “We have among the worst, if not the worst, state judicial selection system in the United States,” said one litigator who asked for anonymity to speak freely about politics in the court system. It’s so bad, the attorney said, that even when the U.S. Supreme Court upheld the convention system in 2008, one concurrent decision included this quote from Thurgood Marshall: “The Constitution does not prohibit legislatures from enacting stupid laws.”
The case was brought by Judge Margarita Lopez-Torres, who currently serves on Surrogate’s Court. After becoming a Civil Court judge in the ’90s, she fell out of favor with the Brooklyn Democratic Party. She claimed party leaders blocked her nomination to Supreme Court judicial conventions. She sued on the grounds that the system violated her First Amendment rights because of the inordinate power held by the Democratic Party.
In New York, some judges are elected and others are appointed, but Assembly Member Carroll said that the judicial convention system represents the worst of both systems. “It’s basically a set of people choosing … but you don’t even know who the people are choosing,” Carroll said, describing his experience in Brooklyn’s conventions. Former Brooklyn District Leader Nick Rizzo recalled when he started in the position in 2014, he was met with a “backlog” of judges he was expected to help elevate to the Brooklyn Supreme Court before he and other reform-minded district leaders could begin considering others.
Julia Forman, now a candidate for City Council, was a judicial delegate from Queens last year. She contacted the Queens Democratic Party multiple times before the convention to learn about the potential nominees, but wound up finding out their names from a news report on the day of the convention. “It was something that was prescripted before we even got there, possibly before we even knew who the delegates were going to be,” Forman said. “And of course, the nine people who were being nominated for these nine spots got the nominations because there was no other option.”
Meeks, the chair of the Queens Democratic Party, told City & State that any delegate is free to nominate their own candidates – although Forman said that the time frame between learning she would be a delegate and the convention was so short, she had no time to vet candidates and build support. Meeks also said that he always tries to be open and available to people looking for information when asked about Forman’s inability to learn about the nominees beforehand. “Anytime anybody has said that they wanted to meet or talk or do anything, I’ve always – we’ve always been able to oblige,” Meeks said.
The Queens Democratic Party came under fire in 2019 after insurgent candidate Lumarie Maldonado Cruz defeated party-backed Wyatt Gibbons in a rare Civil Court primary loss for the party. Less than two months later, the party nominated Gibbons for Supreme Court at the judicial nominating convention. “You’ll have to speak to (the) county, they took care of me,” Gibbons told Gothamist when asked about his nomination. Meeks at the time said Gibbons was elevated “because of his skills, his ability, his quality.” But the political maneuvering was considered to be a rebuke of the voters who had just rejected Gibbons at the ballot box. Paul Newell, a district leader from Manhattan, was shocked when he heard about Gibbons, who was elevated to Supreme Court without first being a judge. “That’s outrageous,” Newell said.
Ortega, who is also a former judicial delegate, said politics still play a heavy role in who gets nominated for Supreme Court in Manhattan, but said the process allows for input from more people than in other boroughs. Democratic clubs interview potential nominees as the candidates figure out if they have enough delegate support to win – although it’s still a highly political process that doesn’t involve the voters directly. But even in Manhattan, judges have to be willing to do a lot of political jockeying to become a Supreme Court justice. And it’s not for everyone. Newell said he knows a Civil Court judge currently serving as an acting Supreme Court justice who said he had no interest in making his position official by running. “‘I don’t want to spend another three years dealing with panels and Democratic Party clubs and, you know, kissing rings, so I’m not doing it,’” Newell said this judge told him. “And I was like, ‘That’s a perfectly reasonable thing that you just said, you sound like a sane person who should be a judge.’”
The problem is that the process, both for Civil Court and Supreme Court, is not transparent and reeks of undemocratic politicking. “There are great judges who have come through the judicial convention. There are terrible judges,” Carroll said. “But it’s a bad system. And we should change it.” He proposed a 13-member independent panel that screens potential Supreme Court nominees, providing a list to the governor who appoints from that list with the consent and approval of the state Legislature.
The likelihood of making those changes, which would require a constitutional amendment, is slim. In the meantime, the current system of elections continues to exist largely outside the control of the voters who ostensibly are meant to choose their own judges. “We all understand that the elective system is here to stay,” said Stephen Younger, a board member of the nonpartisan court reform group Fund for Modern Courts who prefers a system of judicial appointments. “Given that, my focus has been around bringing more transparency to all of the processes for selecting judges in our state.” Younger encouraged anyone involved with the legal community, and even people who aren’t lawyers, to find ways to get involved in their local screening panels. “And you can have a direct impact on who the next generation of judges is,” Younger said.
Political consultant Gary Tilzer, who does not support screening panels for judicial candidates, went about transparency a different way. “I wanted to show what was really going on,” Tilzer told The Village Voice in 2017, when he ran an entire slate of candidates against party-backed judicial candidates in Brooklyn. “I wanted to show how the county organization just picks judges and how the public doesn’t have any say. I figured this is the way to do it.” And to a degree, he had a point – the voters are meant to have a choice in these elections, and he sought to provide them one. But just as getting support from the county organization doesn’t inherently mean a candidate would be a good or bad judge, nor does claiming independence. “Outside of this whole little conversation is actually a legitimate conversation about who actually should be a judge,” West said of the politics. “And, you know, that kind of gets lost in how this process plays out.”
“We need more judges who have practiced and represented poor people. We need more judges who’ve seen the system fail.” – Ali Najmi, vice president of the South Asian and Indo-Caribbean Bar Association of Queens
While many people may be qualified, the process may make it so certain people aren’t considered and others with privilege may be able to bypass the system. Newell and Ortega both mentioned a woman who ran for Civil Court in Manhattan several years ago and defeated the party-backed candidate because she had the money to spend to run a competitive race. And the New York Focus story on judicial donations pointed out that district leader Rory Lancman’s wife was elevated to Supreme Court without making the same donations as other candidates. “For elections, you need money to run, and you also need backing,” said Leah Goodridge, managing attorney for housing policy in Mobilization for Justice’s housing practice. “I don’t think that it’s as black and white as everyone has the same opportunity, you just run people (and) the voters get to know who you are, and then they make a decision.” This plays into not just racial diversity on the bench, but also with ideological diversity. “Diversity in thinking, in order to move the needle, is very important,” Goodridge said. Because becoming a judge is an arduous process, that can limit who is able to run.
As it stands, judicial diversity on the bench is an issue – a 2020 report found that racism is still ingrained in the court culture. The report found that elected judges are actually more diverse than appointed judges, and in New York City at least, those involved in judicial nominations said they try to keep diversity in mind. “I believe in the process, I think it’s a great process,” Keith Wright, chair of the Manhattan Democratic Party, told City & State. “And I will tell you this, it helps to add diversity to the process.” Newell and Ortega generally agreed with the sentiment, in part because a variety of different voices tend to weigh in on endorsements. Meeks too said he takes diversity into account, and both Oliva and Najmi noted that diversity among party-backed judicial candidates has improved in recent years. And certainly, compared to 30 years ago, the diversity of the bench has improved, according to the 2020 report, although white judges still are overrepresented in New York City and the state as a whole. In Queens, the disparities remain stark – Latinos make up nearly 30% of the borough but less than 10% of judges. White residents, on the other hand, make up about 25% of Queens’ population, but more than 61% of judges are white.
And the process of diversifying the courts has been long and slow. It often takes political pressure for those not represented on the bench to start seeing judges that look like them. A Bronx insider noted that the first Dominican judge was elected in the borough with the party’s backing only after the growing community gained enough political clout to make noise about their lack of representation. According to the 2020 report, Latinos make up over 45% of the borough’s residents, but just under 24% of its judges. In Brooklyn, Rizzo said for a long time that judges were split mainly among Black judges and white judges, and it’s still taking time for the bench to be more representative of the community. For example, Asian Americans make up more than 11% of Brooklyn, but only 4% of Brooklyn’s judges. Part of the problem is that judges serve long terms – 10 years on Civil Court and 14 years on Supreme Court – and the seats don’t open up too often. And strictly focusing on racial diversity is not enough either. “It’s not just about having the faces,” Goodridge said. She equated it to a major corporation appointing a woman as CEO to address gender inequity in leadership positions, but then that woman not supporting maternity leave. “A lot of the ways that discrimination often tends to be addressed is, well, let’s just go and get the most conservative-minded, marginalized group, and so it doesn’t actually do a lot of change.”
Najmi, who ran an unsuccessful campaign for judicial delegate last year, said it’s important to get a more open and transparent judicial convention system to improve the quality and diversity of judges who get elevated – not just racial diversity, but a diversity of backgrounds as well. “We need more judges who have practiced and represented poor people. We need more judges who’ve seen the system fail. We need civil rights attorneys, criminal defense attorneys,” Najmi said. “And so I think we need to have more people be delegates for that to happen.”
With all the politics in judicial elections, is there a better way? It’s a source of constant debate. “I don’t know if electing judges is the best way,” West said. Some, like West and Younger, argue that an appointment system that relies on an independent and transparent screening commission to recommend appointments to an executive, who would need approval from a legislative body, is the gold standard. Those interested in serving on the Court of Appeals, for example, submit applications to a judicial screening panel set up by the state, with appointments from the governor, the chief judge and the majority and minority leaders of the state Legislature. Those found to be most qualified are recommended to the governor, who appoints judges with the approval of the state Senate. Gov. Andrew Cuomo set up similar commissions for other appointed positions, such as the Court of Claims and the Appellate Division.
But appointments are certainly not without politics either. The people who make up these commissions can serve as barriers, especially if the screening panels themselves are not representative of the diverse populations they serve or draw heavily from people with similar backgrounds. And appointments can serve political ends too – a candidate for Supreme Court in Westchester County recently was appointed to the Court of Claims by Cuomo. Reportedly, this was done to clear the way for the daughter of Court of Appeals Chief Judge Janet DiFiore, a Cuomo ally, to get the Supreme Court seat. All parties involved denied that politics played a role, but at the very least, the optics appeared to be questionable.
Others like Najmi and Carroll say it’s important to keep judicial elections – at least to some extent – so that people have the right to choose their judges. “I think the Civil Court races and the Surrogate’s Court races, though imperfect, also allow for a safety valve to give people some representation,” Carroll said. It improves the system to have more people interested and involved, which is one of the reasons Najmi ran to become a judicial delegate. This of course also relies on voters to learn about judicial candidates, which is not always easy to do, though more transparency would certainly help with education.
What everyone seems to agree on is that no matter how you cut it, the courts will never be completely apolitical. But that’s true of any position in government – there’s no guarantee that the person elected or appointed is best suited for the role until they have a chance to prove themselves. And the more people are informed along the way, hopefully the better the outcome.