I have long been a strong believer in merit selection. I personally believe it should be our ultimate goal. Unfortunately, I also think it’s not a realistic goal to be achieved in the near future.
I do not want to have open primaries. I have real questions about whether or not voters really can meaningfully cast their vote in primaries. I don’t know what issues judges are going to campaign on, or how voters can intelligently exercise their franchise.
THE PROBLEM OF MONEY
In Texas, there is a story (that I believe is only half apocryphal). Two people try a case before a judge. The judge says, “I want the record to reflect that a lawyer for the plaintiff gave me $10,000 for my campaign and the lawyer for the defendant only gave me $5,000 for my campaign.” And the lawyer for the defense says, “Judge, can we adjourn so I can write you a check?”
If we have open primaries, the issue of money is something that everyone should be very concerned about. Public financing would partially address the issue, but it would not address how voters make their decisions.
Giving Voters Real Choices
Creating A Diverse Judiciary
A PRACTICAL SOLUTION
I do not think that you are going to be able to generate a consensus for merit selection anytime in the foreseeable future. I do not think that you are going to be able to generate consensus on public financing for judicial candidates. If we believe that, I think we are kidding ourselves.
So if we are not going to get merit selection and if the open primary approach is not particularly desirable, then let’s look at the judicial conventions system and ask what is wrong with it and see if it can be corrected.
I think there are two fundamental problems with the convention system. As Judge Gleeson pointed out, it is virtually impossible for anyone who wants to buck the county leader to get elected. So, we have to look at how you can correct that.
The second issue is the “Clarence Norman” problem. Testimony in the case demonstrated that the county leader has had virtual dictatorial power of the quality of the people coming out of the system. There are a lot of judges who should be on the bench. But there are also a lot of people who were able to make deals and they should not be on the bench, but they are.
REFORMING JUDCIAL CONVENTIONS
So how do you correct these flaws?
1. Easier Ballot Access
The first flaw, which I’ll call the constitutional flaw, has two basic issues. One is the number of signatures required for a delegate to get elected. Both the Feerick Commission and Mayor Bloomberg have suggested that you change that 500-signature requirement to 250 to make it easier for people to get on the ballot.
2. Fewer Delegates
The second issue is that under the current statute each party can determine how many delegates there should be at a judicial convention. So if you have a large convention, and you want to run as a maverick candidate, you not only have to get a lot of signatures, but you have to have support from a lot of people at the convention.
Mayor Michael Bloomberg has proposed that the smallest assembly district within the particular judicial district has one delegate, and that the number increase based on population in each district. The Feerick Commission suggested that you have weighted voting to achieve the same balance. Either way, you have to cut down the number of delegates.
3. Screening Panels
So how are we going to ensure that the most qualified people come out of the convention system and not just people who pass some minimal professional criteria?
Unfortunately, the New York State Constitution gets in the way of this. The constitution says that the only qualifications for judges is that you have to be a certain age and you have to have practiced law for a certain period of time. You cannot say that you have to be found “highly qualified” to run for judge.
But what you can do â€“ and this is what the Feerick Commission, Judge Judith Kaye, and the mayor have all proposed â€“ is set up a judicial qualification commission. The commission finds the people at the convention who are qualified to be a judge.
The mayor has pushed this one step further; he has suggested that the qualification commission find the three most highly qualified candidates for each slot.
You cannot mandate that the convention only select from those three people, but if you have a statute and you create this commission I would hope that this would force the parties to adhere to the recommendations of the qualifications commission.
There can be lengthy debate â€“ if we get that far â€“ as to who should pick the members of the judicial qualification commission.
However that is done, you must establish an independent judicial commission and then you ask those people to find the most qualified people. Those are the names are presented to the convention. I think this would change the entire dynamic. We have an opportunity. I hope we can get the State Legislature to wake up and take on this debate.
Michael Cardozo is the corporation counsel for New York CityÂ