The role of ideology in the selection of appellate judges.

• Author: Simons, Richard D.

I am honored to be with you today and to present the 2005 Hugh R. Jones Memorial Lecture. My friendship with Judge Jones goes back to a time long before I was a judge; I was only a young practitioner, and he one of the leaders of the bar. Subsequently, I became a supreme court justice and Judge Jones, or Mr. Jones as he was then known, appeared as counsel in my court. I finally joined Judge Jones as a junior member of the New York Court of Appeals in 1983 and had the pleasure of working with him until his retirement a few years later. Our contacts in these various settings confirmed that he was an excellent lawyer, an outstanding judge, and a warm and loyal colleague whose friendship I valued greatly.

Judge Jones and I were neighbors in Oneida County, he from the village of New Hartford, I from the city of Rome. The buzz following Justice O'Connor's retirement--that a woman would be appointed her successor on the United States Supreme Court because this was a "woman's seat"--reminded me of our time together on the Court of Appeals. The idea that a county the size of Oneida was entitled to one, let alone two, seats on the Court of Appeals was preposterous. Nevertheless, Judge Jones and I kept up a banter with the five other judges on the Court of Appeals about the two Oneida County seats and what we insisted was our county's due--retaining those seats when we retired. Notwithstanding our claims, the two seats were quickly filled with judges from other areas of the state upon our retirement.

Judge Jones had an illustrious career as a practicing attorney and as a jurist. Certainly one of his outstanding contributions to legal literature was his monograph, Cogitations on Appellate Decision-Making. (1) It is a penetrating review of the judicial process and the concerns moving judges to arrive at decisions they earnestly hope will constitute not only justice to the parties, but adherence to accepted legal principles. (2) His views have been addressed with wisdom and discernment by the judges of the Court of Appeals who have preceded me on this platform. They added their own insights and experiences to demonstrate what guides the decision-making process and to identify the fundamental concerns that influence a judge.

I recommend the lectures to those of you who were not fortunate enough to hear them because they canvass the subject thoroughly. Moreover, the lectures give substantial insight into some of the qualities important for those seeking and holding judicial office, a question we face again with the newest vacancies on the Supreme Court. That is the subject I want to address this afternoon--the qualities a candidate for high judicial office should possess.

It has become popular when vacancies arise, particularly on the Supreme Court, to categorize potential nominees. They are liberals or conservatives, activists or strict constructionists, or occasionally, an individual who chooses to be identified as an adherent to some novel or obscure theory of constitutional interpretation. It sometimes appears that any academically qualified attorney is an acceptable candidate for nomination as long as he or she embraces the appropriate judicial philosophy.

Although we sense what a liberal judge or a conservative judge is, the terms "strict constructionist" and "activist" are variously defined, and their meanings are often elusive. An activist is generally described by elected officials as a judge who intrudes into areas reserved to others. The criticism rests on the premise that in a democracy, the majority rules and policy choices belong solely to elected officials. As elected officials representing the majority, it is they, elected officials claim, who are solely responsible for making policy choices, not appointed judges. Paradoxically, the term strict constructionist is sometimes applied to a judge who construes the Constitution to limit the executive or legislative power of our elected representatives, for example, by narrowly construing the Interstate Commerce Clause to limit the power of Congress.

To my mind, these terms are not helpful. They are political code words, imprecise, and offer little guidance in informing us about a judge's qualifications.

What qualities then should our elected officials look for in candidates for judicial office and what qualities should we as citizens expect our elected officials to require of their nominees?

Governor Cuomo, a New York City Democrat, appointed me, a judge from a small town upstate and a registered Republican voter, to the Court of Appeals. I was his first appointment when he took office, and our manifest differences provoked a number of questions of the Governor by the press about how my views would harmonize with his as I addressed the work of the court. The Governor's reply was always the same--those political considerations are irrelevant in choosing a judicial candidate and unimportant to the work of the court.

His statement, no doubt, reflected influences from his early career. Upon his graduation...