A bruising political battle is moving from downtown Brooklyn to the nation’s
capital. To the surprise of many observers, the Supreme Court of the United States
has agreed to hear the case of Margarita Lopez Torres et al against New York
State Board of Elections et al. Its decision will determine whether the present
electing New York State Supreme Court justices is unconstitutional.
The case began in 2004, when
Torres, then a Brooklyn Civil Court judge, claimed she had been blocked
from becoming a state Supreme Court justice because of her independence and refusal
to be influenced by local politicians. After several tries at moving up the judicial
ladder, Lopez Torres concluded that she had been intentionally shut out and that,
under the system for electing Supreme Court justices in New York state, she would
never be able to get her name on the ballot before the general voting public.
In a challenge to the nomination process, her lawyers have successfully argued
in two federal
courtsthat the present method of selecting candidates is unconstitutional. They maintain
that it violates the U.S. Constitution by having delegates to a convention â€“ and
not voters in a primary â€“ determine who gets on the general election ballot.
Although Lopez Torres has since been elected a judge of the Kings County (Brooklyn)
Surrogate Court, and although the convention system is unique to New York, the
battle has continued, reaching the highest court in the nation where arguments
will be heard next week.
Becoming a State Supreme Court Justice
New York State Supreme Court justices, who preside over trials and have general
jurisdiction, are nominated by judicial delegates. These are registered members
of a particular party who are
to attend a judicial convention by fellow party members in each Assembly
district. At the convention, names of candidates seeking to fill available seats
on the court are placed in nomination. Any New York judge or lawyer who has been
a member of the bar for at least 10 years can be nominated. But Lopez Torres
argues that no hopeful who lacks the support of local politicians and political
clubs can organize sufficient delegates to become the designated candidate. She
makes this argument even though she was nominated at one convention and received
a large number of votes, but not enough to secure a place on the November ballot.
Winning the nomination is usually tantamount to winning the election. Opposing
parties rarely present challenges. The candidate who appears on the Election
Day ballot in New York City is usually the Democrat, who may or may not be endorsed
by other parties but who almost always wins either way. Other parties may field
their own candidates, but with little expectation of winning.
Opening the Primaries
Essentially, the Lopez Torres argument is that she or anyone not favored by the
party in power cannot gain access to the November general election ballot. To
remedy this, her lawsuit contends that New York State Supreme Court justices
should be elected through a primary process. This is the way voters choose New
York City Civil Court judges and other elected officials.
New York used a primary system to elect state judges at the beginning of the
20th century, but critics considered it cumbersome, expensive and a possible
threat to judicial independence. The legislature replaced it with the present
Like other elected officials, lower court judges run for office by getting enough
registered party voters in their district to sign their nominating petitions.
Those who qualify appear on the ballot to face a possible primary and then, of
course, the general election. Again, any New York City resident who is a registered
voter and who has been admitted to the bar for at least 10 years may circulate
petitions and launch a primary campaign. While difficult, this route is sometimes
successful, whether for an open seat or to replace an incumbent judge.
The system Lopez Torres would like to see for Supreme Court justices was on view
in three contests for lower court judges in Brooklyn last week. The races, for
a seat on the Surrogate Court and two on Civil Court, were hotly contested, and
in the Surrogate Court race, the candidate with the backing of the party leadership
On to Washington
Those opposing the Lopez Torres position argue that it is up to the legislative
branch to determine a method of electing statewide judges and that the present
system is the one enacted by our legislature. Also, some of the legal briefs
raise the issue that a delegate convention is not only constitutional but shares
many characteristics with the American system of electing presidents. Depending
up on the state, electors may be nominated at conventions and then cast votes
through the Electoral College, which actually elects the president.
Dozens of lawyers from around the country, various bar associations and good
government groups are weighing in with legal briefs on both sides of the Lopez
Torres litigation. As the state’s
lawyer, the New York State attorney general is defending the present system.
The stakes are enormous. What the justices decide in Washington could have a
staggering impact on New York electoral and judicial politics. If, after hearing
oral arguments, a majority agree with the Federal District Court and the U.S.
Court of Appeals that the system is constitutionally flawed, then it would have
to be dismantled and the state legislature would have to enact a new method.
The justices are unlikely to dictate what the alternative should be, although
the mid-level federal court called for the primary model. On the other hand,
the justices may find that the existing system should be upheld and that New
York can continue with the judicial conventions it has held for the last 86 years.
They could do neither. Instead, the Supreme Court may decide that the case warrants
further proceedings, evidence and a trial and return the issue to the federal
court in Brooklyn. That could start the litigation process all over and keep
the existing system in place â€“ at least temporarily.
Lopez Torres is represented by the Brennan
for Justice at NYU School of Law and Arnold & Porter. When the court hears
the case, Frederic A.O. Schwarz Jr. will argue for them.
On the other side, Andrew Rossman of Akin Gump Strauss Hauer & Feld will
appear for the New York County Democratic Committee, and counsel for the New
York Republican State Committee is Carter G. Phillips of Sidley Austin LLP. Both
party committees also have counsel from firms in New York, Washington and Los
Angeles. Lead counsel for the Associations of New York State Supreme Court Justices
is Joseph Forstadt of Stroock & Stroock & Lavan. To present its case,
the State of New York has retained Ted Olson, who argued the Bush side of Bush
v Gore and was recently thought to be a leading contender for U.S. attorney general.
Watch for next week's report -- direct from Washington.
Emily Jane Goodman is a New York State Supreme Court JusticeÂ
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