There has been a bit of hue and cry lately concerning the fact that the Brooklyn Dems have nominated a candidate for Supreme Court who, as a law student, once questioned Roe v. Wade, and later chose to write about it in a smug, self-satisfied manner.
This was hiding in plain sight, on a link on the candidate’s own Wikipedia page, but came to folks’ attention after the real selection (but not the legal one) was already virtually set in stone. And the media, which covered the story and knew about it before the judicial nominating convention, chose not to run the story until nothing could be done about it.
Judicial selection in New York State is so convoluted and confusing, and of interest to so few, that its workings are a puzzle to most, including some who are most involved with making some of the choices.
In NYC, we “elect” Civil, Supreme and Surrogate Judges. Other judgeships are appointed by the Governor (subject to confirmation) or the Mayor (not so subject) using recommendation by screening panels.
Civil and Surrogate Court nominees of each party are selected in primaries (if they are not unopposed), while Supreme Court nominees are selected at nominating conventions by delegates selected at primaries (if they are not, as is usually the case, unopposed).
At least, that’s how it works on paper.
In actuality, before its convention meets, the Brooklyn Democratic Party’s Executive Committee, consisting of the elected party State Committee members from each Assembly District (who, in Brooklyn, are the Party’s de facto “District Leaders“) decide among themselves which names will be put before the convention, and those folks are then nominated by the convention, which operates using a script, with the speaking roles pre-assigned.
Yes, the delegates can nominate someone from the floor. This happened in 2022, but candidate so nominated had one of his supporters inform the convention that he was not interested in contesting the nomination, so his name was withdrawn. The last time a nomination from the floor led to a convention floor vote was 2004.
It is generally believed that submitting one’s name to a floor vote would so insult the District Leaders that anyone who did so would be insuring they would never be nominated for Supreme Court. Since 2004, no one who wants to go to Supreme has been willing to put this belief to an actual test, so there are no contests.
This leaves the power of the district leaders virtually unchecked, except for the Party’s Independent Judicial Screening Panel, created in the wake of scandals at the beginning of this century.
The panel, like all efforts to reform a political process to select the person who will receive a prestigious position, is undeniably imperfect (the “independent” screening panels used by the Mayor and the Governor are also undeniably imperfect). Some have complained that the Brooklyn panel’s rules differ in significant ways from that of the similar panel in Manhattan; ironically, most of the difference had come at the suggestion of Manhattanites dissatisfied with the imperfections in their own panel’s procedures, which have lately sparked their own controversies.
At the Supreme Court level, the panel has real teeth; under the Brooklyn Party’s rules one cannot be put before the Executive Committee unless one was approved by the Screening Panel (no such rules bind the convention itself, which is a creature of state law).
Are the panels perfect? No, they tend to heavily give weight to the prejudices of the various wings of the County’s legal establishment. Those wings include legal aid and public interest lawyers, and various ethnic associations. The panels are by no means lily-white; but they do tend to reflect the concerns of those who appear in Court for a living, perhaps sometimes to the detriment of other considerations. And sometimes there appears to be a bit of logrolling amongst the various factions.
Sometimes, in my humble opinion, the panel has done injustices.
However, no one has ever posited any alternative method of performing such a function in an elective system. And, in fact, the equivalent panels which stand guard over appointed judgeships usually have the same establishment biases, except that they are less likely to have the diversity of the Kings County Panel.
In addition to the Screening Panel, the Party, as a sop to certain of the more outsider district leaders, created its own Ad Hoc Committee on the Judiciary, which issued its own report, complete with courtroom observations, and opinions solicited from attorneys who’ve observed the candidates in court.
The report was distributed to the Party Leaders, though not to the delegates; it was posted on a website, without any publicity, and those who asked the party where they could obtain a copy were ignored, though the Party did send out a press release congratulating itself on the report, which it refused to distribute, hailing it as a major move for transparency.
This report contained some concerning observations, in particular about possible bias by one of the judges ultimately nominated. Strangely enough, it was the “Roe” judge, although one wouldn’t know that from the subsequent media coverage, which ignored these allegations entirely.
When excerpts concerning this were emailed to some leaders, this was mostly condemned as unsporting, the Party position apparently being that it was a great report, but that no one should actually read it, and few actually did.
So, the only report that counted was that of the screening panel, which only sets a floor. Beyond that, the “process” is most analogous to a bazaar, with elements of the bizarre.
Bargains and tradeoffs are the coins of the realm, and like any seemingly foreign and daunting process, it sometimes helps to retain the services of sherpas. In Manhattan, this has practically become a cottage industry, while in Brooklyn, it is neither the exception nor the rule.
So, for a few months, party functionaries barely known outside the professional political class are courted and feted, and become the recipients of calls by Rabbis, ministers, community leaders and donors in a process as transparent as an unventilated hookah bar. Deals are sometimes literally made over whiskey in the backroom of a clubhouse following a cigar party.
Is this any way to pick judges?
Well, it is pluralistic. Although some years, like 2023, produce tickets that are disproportionately white, and others, like 2022, produce tickets than are disproportionately African-American, over the years things tend to even out, and generally, the conventions, while still underrepresenting Latinos and Asians, generally do better than primary elections in producing a court that looks like the Borough. And reformers have real influence on the process; their caucus endorsed five candidates for the six open slots, and all those candidate won.
But can we do better?
Reformers”, in this instance, divide neatly between those who seek to implement “merit selection”, i.e, making the judicial selection process less democratic (by eliminating elections), and those who want to make the selection process more so (by having real ones).
At the Supreme Court level, the current process combines the evils of both systems with the virtues of neither. Some “reformers” will settle for either extreme against the present muddled middle, and I have to concede that even selecting names from a hat or casting lots at Purim time would probably eliminate some of the current system’s flaws.
What then?
Appointive systems have traditionally underrepresented minority groups, though this has been getting somewhat better over time, at least when it is Democrats who have been doing the appointing. But having the Governor appoint all Supreme Court judges is likely going to produce courts a good deal more “white shoe” than most who call themselves reformers in today’s Brooklyn might desire, as well as courts a good deal more conservative in those years when then GOP obtains the Governorship, which will inevitably occur.
While a better way is not readily apparent, there are some suggestions that won’t necessarily improve things.
Many of today’s reformers are now proposing to improve the conventions by making sure they are no longer a sham, empowering the delegates to make the actual choices.
This would have the detrimental effect of making the power of the screening panel merely advisory and adherence to them voluntary.
And, beyond that, let’s be clear; you don’t fix the judicial convention process by empowering the delegates (who will still mostly be handpicked by the same district leaders); that’s like trying to fix the Presidential election process by empowering the electors.
The way you fix the convention process is by eliminating the conventions. We need to pass a law.
In the meantime, I’m not necessarily objecting to folks trying to beat the fix, and use the floor to install different nominees (provided they are better nominees) The allocation of delegates better reflects where Democratic voters lives than the party’s Exec Committee does, and real fights are potentially good fun.
Just don’t call that “Reform.”
Personally, I’d like to overhaul judicial election completely; elect judges from smaller, equal size districts, about the size of an Assembly District, which would ensure better representation of the Boroughs various constituencies, and I’d combine that with retention elections for incumbents, ensuring that, once elected, judges can be less political.
If we are to elect judges, let’s actually elect them.
