Thursday, November 16, 2006

Assembly Hearings on Judicial Selection

Yesterday, the Assembly Committee on the Judiciary held a hearing in Manhattan to discuss judicial selection in light of the recent Second Circuit decision that found New York’s system of judicial conventions to be unconstitutional. Judge Gleeson of the Eastern District of New York ordered that “until the New York Legislature enacts another electoral scheme, [Supreme Court] nominations shall be made by primary elections.” The Second Circuit affirmed Judge Gleeson's decision.

The hearing, the first in a series that will also take the Committee to Rochester and Albany over the next month, featured our very own Fritz Schwarz, who was lead counsel in the litigation that invalidated the old system of picking judges. Fritz’s testimony stressed that the Legislature, in assessing the proposals before it, must take care to only consider systems that would pass constitutional muster. He argued:
Those who contend that cosmetic changes will satisfy the courts have seized on a few details but ignore the profound and most fundamental constitutional infirmity of the convention system they are promoting: it does not envision a meaningful opportunity for voters to actually cast a vote for the candidates they support. Without such an opportunity, no convention system can stand.
If the legislators rejected the permanent adoption of open primaries, Fritz urged them to consider “a system analogous to the conventions now used to designate nominees for all state-wide offices.” Candidates could garner the support of convention delegates, or they could petition onto the primary ballot.

Jason Boog of Judicial Reports notes:
No one other than Frederick A. O. Schwarz, Jr…really wrestled with the 800-pound gorilla swinging between the chandeliers. These tinkerings, he argued, failed to solve the immediate problem at hand – Judge Gleeson’s finding that voters constitutionally deserve vastly more meaningful participation in the process.
Bravo, Fritz! We hope the Legislature will heed your warnings and, in your own words, build a system “that gives parties their appropriate role, but gives voters a true voice, as they have in balloting for every other elected office in the state.”

Categories: General, Judicial Selection

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