A. Thomas Levin Quoted in LIBN, "U.S. Court of Appeals Upholds Supreme Court Nomination Systems Decision"

Media Source: Long Island Business News

Overruled!

Federal justices have dismissed objections by New York State, dealing a knockout blow to the old system for nominating state Supreme Court judges.

The United States Court of Appeals has sent the state back to the drawing board to invent a new way to select its Supreme Court judges, fueling a frothy legal debate over just how these key figures should join the judiciary.

The highest federal court short of the U.S. Supreme Court upheld a January decision by U.S. District Court Judge John Gleeson, who found that 'local majority party leaders - not the voters' handpick judges. According to the decision, as of the 2007 election cycle, New York must revise its nominating system, with primary elections the most likely short-term solution.

'The highly unusual processes by which that extremely important office is filled ... deprive the voters of any meaningful role,' Gleeson wrote, effectively killing a system New York has employed since Prohibition.

New York State Supreme Court judges, presiding over both criminal and civil cases, are selected for 14-year terms through a process unique to this state. Voters elect delegates who then nominate judges at judicial conventions; critics say these delegates simply rubberstamp party leader picks.

In its decision, the U.S. Court of Appeals cited the conclusion of a commission convened by New York State Chief Judge Judith Kaye that 'the system for selecting candidates for the Supreme Court vests almost total control in the hands of local political leaders. '

But some note that throwing out the current system with one stroke of a pen opens new questions about how judges should be chosen.

'It will have a dramatic change on how judges are nominated to run for election for the Supreme Court,' said New York State Supreme Court Justice Ira B. Warshawsky.

Other judges were even more emphatic, describing the decision as tossing the baby with the bathwater. 'They've created a monster,' said one judge, who asked not to be identified.

The state has used the judicial convention approach since 1921, when it did away with judicial primaries. Gleeson said giving party leaders 'the job of selecting members of the judiciary' is an appointive - not an elective - system.

'These delegates are handpicked by the party leaders,' agreed former New York State Bar Association President A. Thomas Levin, a partner at Meyer, Suozzi, English & Klein in Mineola.'So when they go to the convention, they are theoretically beholden to the leaders. '

Others said it's ironic that federal judges ruling on state law are not elected, but appointed for life by the president. 'Where is the electorate?' said a state judge who asked not to be identified. 'Where is the democracy with respect to that?'

The big concern, this judge added, is that, by opening state Supreme Court judgeships to primaries, bench slots could go not necessarily to the best candidates, but to the biggest spenders.

'They're giving the Supreme Court to the rich,' the judge said. 'If this continues, all you'll have is rich judges on the bench. The public servants will be pushed off. '

New York State Bar Association President President Mark H. Alcott said the bar doesn't favor primaries, which would 'unduly politicize the system. ' Instead, according to the president, the bar favors a 'merit selection' system.

'We now have a chance for real reform,' Alcott said, 'and we should seize it. '

The State Senate has passed a bill providing for primary elections for Supreme Court justices, at least for the short term. Nominations for Civil Court judges and County Court judges are already done through primaries.