Advancing the rule of law through judicial selection reform: is the New York Court of Appeals judicial selection process the least of our concerns in New York?

• Author: Greene, Norman L.
• Position: PERSPECTIVES

1. INTRODUCTION

   It is disconcerting to a reformer to be told that other things besides her reform are more pressing. Sometimes, when we have to select priorities, however, one needs to remember the adage of "first things first." This may be one of those times, especially if we need to prioritize among reforms. Recent consideration of reforms to the system for selecting judges for the New York Court of Appeals raises the question of how this system compares to other systems for selecting judges within the State of New York. (1) This article considers some of the comparisons and concludes that even if some improvement of the Court of Appeals system is warranted, this should not obscure the fact that other judicial selection systems within the State are in much greater need of reform.

2. THE FUNDAMENTAL PRINCIPLES OF JUDICIAL SELECTION: AN OVERVIEW OF A SYSTEM CONDUCIVE TO ESTABLISHING RULE OF LAW VALUES

   One of the key purposes of a judicial selection system is to select a judiciary in a manner most conducive to establishing the rule of law. This entails, among other things, judges who are competent, independent, accountable, fair, protective of our fundamental rights, and diverse. (2) The World Justice Project's definition of the rule of law captures this nicely, as do some other definitions:

   The government and its officials and agents are accountable under the law. The laws are clear, publicized, stable, and fair, and protect fundamental rights, including the security of persons and property. The process by which the laws are enacted, administered and enforced is accessible, fair, and efficient. The laws are upheld, and access to justice is provided, by competent, independent, and ethical law enforcement officials, attorneys or representatives, and judges who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve. (3) The preeminence of the concept of the rule of law was expressly recognized in President Barack Obama's inaugural address; and the rule of law has been related to economic well-being both internationally and domestically. (4)

   A judicial selection system does not operate alone: codes of judicial conduct elaborate on the standards governing a judiciary, including sound judicial temperament and civility; and judicial conduct commissions and administrative judges are charged with enforcing compliance when problems arise. (5)

   It has been observed that selecting a judiciary likely to meet these standards requires a process comparable to hiring senior executives. (6) This requires an outreach to potential candidates in order to have a pool of available applicants and a thorough screening, which should involve a background investigation (both personal and professional, including interviews and reference checks), all done by personnel with adequate resources and skills to perform this function. In turn, this may require selecting persons knowledgeable (or training them) on how to acquire the requisite information about the candidate and how to evaluate the information once it has been obtained. Selecting judges is not necessarily an innate skill.

   The screeners also have to be governed by rules so that candidates are treated alike and proper criteria are considered. For example, screeners of judges should not reject candidate A because of a bad temperament and accept candidate B despite the same bad temperament. Absent special circumstances, they should not check five references on candidate A, with each reference check lasting five minutes, and forty references on candidate B, with each check lasting an hour. (7) They should not examine the scholarship of candidate A and ignore the scholarship of candidate B. Interviews should be subject to guidelines so as to prevent inappropriate inquiries, such as how a candidate is likely to rule in particular cases. (8)

   Finally, there should be a means to detect violations of the rules by the screeners and remedies to cure any harm. Having rules is of limited value if the violations are undiscoverable or remedies are unavailable when violations are discovered.

3. THE NEW YORK COURT OF APPEALS SELECTION PROCESS--COMMISSION-BASED APPOINTMENT

   Since 1977, the Judges for the New York Court of Appeals have been required to be selected through a commission-based appointment system. In brief, a judicial nominating commission consisting of twelve persons selects a limited number of nominees from which the Governor must choose his candidate for judge, subject to Senate confirmation. (9) So far, the Senate's role has been largely quiescent, and everyone selected by the Governor has been confirmed. (10)

   The judicial selection process for the New York Court of Appeals recently came under scrutiny when a list of nominees to fill retired Chief Judge Judith Kaye's position did not include a woman on it, even though some women, including Court of Appeals Judge Carmen Beauchamp Ciparick, had applied for the position. (11) Although there was a consensus that the persons on the list were sufficiently qualified, (12) the lack of a woman triggered a controversy over whether the judicial nominating commission had appropriately considered gender diversity. (13) Nevertheless, few, if any, have doubted (at least publicly) that the current system has yielded either an "outstanding," "fine," or "good enough" court, leaving aside what is the measure of an "outstanding," "fine," or "good enough" court. (14) Indeed, as a keen observer of the Court of Appeals noted, the selection system for the court may have certain flaws, but the results have historically been acceptable. (15)

   For example, the process has eliminated judicial elections for the Court of Appeals, which would have permitted or required the following: raising campaign funds, leading to the question of whether justice is for sale; (16) and the making of campaign statements on legal and political matters, among other things, potentially compromising the appearance of judicial impartiality. (17)

   In its 2009 decision in Caperton v. A.T. Massey Coal Co., Inc., (18) the United States Supreme Court expressly recognized that campaign contributions in judicial elections can be so excessive (and were under the facts of that case (19)) that they require the recusal of the judge receiving them from hearing a case involving the donor's company as a matter of federal due process. As the Supreme Court noted:

   So it became at once apparent that, absent recusal, Justice Benjamin would review a judgment that cost his biggest donor's company $50 million. Although there is no allegation of a quid pro quo agreement, the fact remains that Blankenship's extraordinary contributions were made at a time when he had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when--without the consent of the other parties--a man chooses the judge in his own cause. And applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin's recusal. (20) The Supreme Court also observed that less egregious campaign contributions may require recusal of the recipient under state judicial conduct codes. (21)

   Terminating the practice of campaign contributions entirely through the elimination of judicial elections best preserves the appearance of impartiality, and that is precisely what New York has done for the Court of Appeals. New York has also established a screening mechanism which is an integral part of the process and which is absent from judicial elections in order to help ensure judicial quality; (22) and it has produced a court diversified in terms of gender, currently with three women members out of seven judges, and previously with four women out of seven.

   That does not mean that there is no room for improvement. It has been observed that New York's selection plan for the Court of Appeals, "as good as it may be in comparison to others, is not nearly as good as it should be." (23) Suggestions for improvement may include finding a way to increase the pool or pipeline of diverse applicants, (24) as well as establishing an explicit requirement that diversity should be considered; increasing openness in the commission process (consistent with the need for confidentiality); training judicial nominating commissioners; taking steps to avoid the possibility of manipulation of the process by those seeking to influence the commissioners; (25) and establishing term limits for commissioners. (26) Improving judicial appointment systems was the theme of a full-day symposium held at Fordham Law School in 2006, which was followed by an entire volume of articles by symposium participants in the Fordham Urban Law Journal devoted to it. (27)

4. TOO MANY COURTS IN NEW YORK STILL HAVE ELECTED JUDICIARIES

   The recent focus on judicial selection for the Court of Appeals should not distract attention from needed reforms in the selection of judges for other courts in New York. Although the Court of Appeals may be the subject of improved procedures, the current system, unlike that for some other New York courts, is relatively sound. For example, other New York courts still use popular judicial elections to select their judges, a practice virtually unknown outside the United States (28) and ill-advised within New York State. The elected courts in New York include most of the trial courts throughout the State. Exceptions would include the Court of Claims, Criminal and Family Courts in New York City and some courts with interim appointments. (Certain international court judges are elected by intergovernmental bodies, although one would not call these popular judicial elections, and even those elections are under scrutiny. (29))

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