Keynote address Fordham University School of Law: Friday, April 7, 2006: why we seek reform.

• Author: Feerick, John D.
• Position: Rethinking Judicial Selection: A Critical Appraisal of Appointive Selection for State Court Judges

KEYNOTE ADDRESS FORDHAM UNIVERSITY SCHOOL OF LAW FRIDAY, APRIL 7, 2006

I appreciate very much the opportunity to speak at this program on what makes for a good appointive system.

My involvement with the subject of judicial selection comes from two roles. From 1987 to 1990, I chaired a New York State Commission on Government Integrity, (1) which Peter Bienstock was the executive director of. (2) Richard Emery, who is here, was a distinguished member of that commission, (3) which, when it concluded its work, recommended the abolition of the elective system for selecting New York State trial judges. (4)

The ideas put forward did not prevail at the time, certainly, in terms of political change. (5) I am certainly happy that the views of that commission, Norman tells me, have contributed to his own thinking on the subject, and perhaps that of others. (6)

More recently, I have been chairing a commission appointed by Chief Judge Kaye with a mandate of promoting and enhancing confidence in judicial elections in this state. (7) When she asked me to chair this commission in the fall of 2002, she said, "Don't get hung up with appointive systems and changing the elective system and the idea of amending the New York State Constitution, because you know there's no support for that." Finding out what we could do to promote confidence in judicial elections was the task and assignment of our commission, a commission of twenty-nine citizens and judges--a lot of different backgrounds, from every part of the state. (8)

We made a number of recommendations, (9) some of which have been adopted by administrative rule and by the Court of Appeals, through its rulemaking authority and supervisory functions, with respect to the court system. (10) But many recommendations that we made can only be implemented by the Legislature, and the Legislature has so far been reluctant to embrace any change in the elective process, with one exception having to do with campaign filings being sent to a central office rather than having to search throughout fifty-seven counties for information as to what is going on in the elective process in the state. (11)

When Norman invited me to participate in today's program, I responded by email as follows (I'm not sure what was on my mind when I gave him this response, but this is what I said):

"What would you think of a philosophical reflection by me on the role of a judge in our society and why it is important to always look at and try to improve the way we select our judges, notwithstanding the enormous resistance to any change from public leaders, political party officials, the bar, and the people themselves, who do not vote in elective systems or get much involved in appointive systems, except for the various special-interest groups? Everyone seems to have his own idea of reform, as I have discovered, leading to no consensus or even any real attempt at consensus, thereby keeping in place a failed system."

I concluded my email by saying, "Are we tilting at windmills?"

Norman called me immediately and asked me to explain my email. I now do so.

I start with a personal reflection. I have been a member of the bar for forty-five years (and I suspect that I am joined by at least a few of you) and have spent time in almost all those years on the subject of government reform--ethics reform, campaign finance reforms, voter participation reforms, judicial selection reforms, and the like. These are not subjects for the short-winded or for the faint of heart. I have noticed in all of those efforts the different points of view that manifest themselves, the difficulty of groups compromising deeply felt positions, the intense resistance by those with political power to change the status quo and give up the advantages they believe they have under the present system, and, most noticeably, the absence of a public groundswell in support of specific changes.

Finding sufficient common ground to effect reform is certainly a very elusive goal, in my experience.

Not too many years ago, after a highly public effort by the New York State Commission on Government Integrity, which I made earlier reference to, (12) to achieve government ethics reform, I went to Albany to meet with the speaker of the New York State Assembly, (13) and I asked him what problems he had with the commission's recommendations. He said he had none, but the members of his body were not hearing from their constituents about such subjects of ethics reform. In other words, there was no public pressure to change the system.

He also observed that whenever legislators adopt reforms in areas of government ethics, they are inevitably criticized by reformers for not going far enough, thereby receiving no credit for what they did, or even worse, being positioned as not being interested in ethics reform. He suggested that there was very little incentive in the legislative body to give leadership in such areas.

In my recent experience for the Commission to Promote Confidence in Judicial Elections, (14) with no mandate to move to an appointive system, I have received similar reactions to change, as I have gone throughout the state--often with the commission's very able counsel, Mike Sweeney, who is going to speak later in the program--to the reactions that I have experienced in the past:

* Some lawyers and judges have complained that the work of commissions to study and promote confidence in judicial elections do harm to the judiciary by their very creation, casting a negative reflection on their work.

* Some see judicial qualification commissions as the first step in a process to substitute a system by appointment, to which they strenuously object.

* One or more groups, with systems of ranking judges in their particular areas, have expressed to me the view that the creation of an independent qualifications commission would undermine their work, undermine what they do in terms of ranking judges.

* Lawyers who are familiar and comfortable with the workings...