What makes a good appointive system for the selection of state court judges: the vision of the symposium.

• Author: Greene, Norman L.
• Position: Rethinking Judicial Selection: A Critical Appraisal of Appointive Selection for State Court Judges

I. The Vision of the Symposium A. Introduction B. The Context 1. Concerns About Elections 2. "No Anomalous Political Mugging": The Second Circuit's Decision in Lopez Torres v. New York State Board of Elections 3. Designing the Alternative II. The Symposium A. The Importance of Judicial Appointments Throughout the United States B. The Principal Modes of Appointment C. The Need for Public Education on the Role of the Judiciary D. Selecting a Judicial Nominating Commission E. Rules and Training of Judicial Nominating Commissions F. Confidentiality of Commission Proceedings G. Review and Oversight for Commission Proceedings H. Diversity in Appointment Systems I. The Role of Judicial Discipline in Judicial Selection J. The Reselection of Judges in Appointment Systems K. Judicial Performance Evaluations in Appointive Systems L. Pre-Judicial Education--European Models M. Empirical Research on Appointive Systems Conclusion Symposium Acknowledgments Pessimists about the benefits and chances of reform can be found everywhere. In my view, whatever we believe about any particular system, we should all approach our democracy as reformers and agents for change, especially lawyers, who take an oath to uphold and improve the law. While some sit back and praise what we all believe to be the greatest government in the world, others ... continually focus on not what our democracy is, but what it should be. (1)

I. THE VISION OF THE SYMPOSIUM

1. Introduction

   What makes a good commission-based appointment system for the selection of state court judges? (2) This is an important question because the models proposed by reformers and adopted by the states should be the best available. Through the presentations at Fordham Law School on April 7, 2006 and the articles in this book, the symposium sought to guide the reform of judicial selection systems by identifying the best approaches to appointing judges, existing or proposed. (3) To paraphrase the introduction to this Article, the symposium approached the subject as an agent for change. (4) The subject is multi-disciplinary, so the symposium included a number of panelists who are political scientists as well as lawyers, law professors, and judges; because the subject involved various states, the twenty participants came from fifteen different ones.

   This Article will proceed in two parts. First, it will set forth the context of the symposium, including reflections on how judges are being selected now through the elective process, the need for a better approach to judicial selection, and the particular climate in New York at the time of the symposium and thereafter. The New York discussion will focus on the district court and Second Circuit decisions in Lopez Torres v. New York State Board of Elections, which exposed and struck down as unconstitutional New York's scheme for selecting certain trial court judges, under which political party leaders dictated judicial selection. (5) Second, it will review the principal topics and themes of the symposium, including highlights of the presentations and articles of the participants on how a well-constructed judicial appointment system should be designed. To quote one of the symposium's panelists, "Embracing a judicial nominating commission scheme is not enough. Choosing the appropriate paradigm is paramount." (6)

2. The Context

   1. Concerns About Elections

      Reformers have long proposed the use of commission-based appointive systems as a cure for judicial selection problems, principally but not exclusively with elections. (7) These problems include improper incentives for elected judges to decide what might be popular rather than decide the case upon the basis of the law and the facts, and the ills of costly, nasty election campaigns. (8) To the extent that the public believes the negative things judicial candidates say about each other while campaigning, this harms the justice system by undermining trust in the judiciary. (9) Also, the need to raise campaign funds, among other things, threatens the appearance (or fact) of impartiality. There have also been sham political boss-controlled elevations of party favorites, where party loyalty or service (past or anticipated), rather than competence or temperament, are at issue. (10) "Political party leaders see the judiciary as a way to promote and reward political party involvement." (11) Commission-based appointment systems are also recommended to replace systems where judges are appointed without commissions. (12)

      Some "reform" politicians contend that they use "independent" screening panels before selecting party favorites as nominees in an elective process in an attempt to seek judicial quality. (13) These panels should not be confused with judicial nominating commissions. Political screening panels by their very nature can be unreliable guardians against the unqualified, bad-tempered, and otherwise ill-suited candidates for judicial office. (14) For example, such screening panels, lacking official sanction or sponsorship, are not subject to published and enforceable rules and regulations. (15) They need not hold public hearings or even operate openly. The public has no enforceable right to bring the unqualified to the attention of these committees, no right to appear before the committees to make their position known personally, and no right to know even when or where the committees meet so as to be able to bring forward information.

      Nor is the thoroughness of the investigation by these panels known, let alone whether the investigators are trained in the process. (16) The public is not permitted to respond to the judge who is interviewed before the committee, who answers pleasantly for the short period of time of the interview (as virtually anyone can) to dispel any concerns of the committee, and who dismisses the unfavorable comments gathered by the committee as those of disgruntled litigants. All of these issues may be addressed in a well-designed appointive system.

   2. "No Anomalous Political Mugging": The Second Circuit's Decision in Lopez Torres v. New York State Board of Elections

      The best permanent solution ... would be a merit-based appointment system that puts qualifications ahead of political connections.... The current system of choosing judges through secret deals and old-fashioned cronyism corrodes the integrity of the legal system and diminishes the courts. (17) Nationally, the 2002 Supreme Court decision in Republican Party of Minnesota v. White (18) and ensuing decisions raised new concerns over how judges are selected by expanding the permissible campaign conduct of judicial candidates. (19) As the Chief Justice of the Minnesota Supreme Court recently observed, under White, "[j]udicial candidates can now ... announce their personal views on disputed political, social and legal issues and, with some limits, personally solicit contributions for their campaigns." (20) In her concurring opinion in White, Justice Sandra Day O'Connor noted that if the states were unhappy with the implications of White, they need not elect their judges. (21) While the White case was already generating discussion of judicial selection reform, another decision issued just a few months before this symposium intensified the dialogue and gave the symposium a special context.

      In January 2006, a federal district court in New York issued a decision in Lopez Torres v. New York State Board of Elections, which the Second Circuit Court of Appeals affirmed in August 2006. The court preliminarily enjoined New York's convention system for the selection of party nominees to be trial court judges known as "Supreme Court justices." (22) Unlike judges in any other state, New York's trial judges, designated "Supreme Court justices," (23) were nominated through a convention process, not through partisan primaries or other means. (24) At the convention, delegates selected the party's nominees for judgeships, and these nominees appeared on the general election ballot. (25) The Second Circuit began its decision and framed the issue, stating "[t]his case requires us to peer inside New York State's political clubhouses and determine whether party leaders have arrogated to themselves a choice that belongs to the people." (26) The Second Circuit found that nomination in New York is typically tantamount to election, and the New York nomination process is controlled by political party leadership. (27) The Second Circuit found, among other things, that "[t]hrough a byzantine and onerous network of nominating phase regulations employed in areas of one-party rule, New York has transformed a de jure election into a de facto appointment [by political party leadership]." (28)

      The court concluded that the lead plaintiff's frustration by county party leadership for nomination to a trial court judgeship was not an "anomalous political mugging." (29) "[O]ne-party rule is the norm in most judicial districts," and "the general election [for the trial court judgeships] is little more than ceremony" (30); a county party leader admitted saying that he "'surely' can 'kill' any nomination and delegates [would] not "want[] to get me angry, so they will not go against me until they have nothing to lose." (31) "[N]o one wants to upset the county leader" since that "would jeopardize one's political future." (32) Since politics drove the process, some candidates advanced to nomination in part because their husbands were district political party leaders. (33) A known "'horrible' choice--unqualified and temperamentally unfit for the bench," was not opposed at a convention for fear of offending the political leader who desired the candidate. (34) In the case of the lead plaintiff, the party leaders refused to support her nomination for a Supreme Court judgeship because she refused to hire the leader's favored candidate for an important position as her law secretary while she served as a Civil Court judge. (35) Such political domination of the...