On Friday, along with pro bono partners Arnold & Porter LLP and Jenner & Block LLP, the Brennan Center filed its brief urging the U.S. Supreme Court to uphold the unanimous decision of the Second Circuit enjoining New York’s uniquely burdensome multi-state system for selecting state Supreme Court nominees. The system purports to grant voters a role in electing trial court judges, but in reality, local party bosses control the process at the expense of their party’s rank-and-file members, who are precluded from playing any meaningful role in determining their own party’s standard bearer.
In its brief, the Brennan Center urged the Court to tear down one of the last vestiges of Tammany Hall’s boss control of New York State government arguing that “New York’s state-imposed nominating process creates a locked gate, to which those in control of the party hold the only key.” In urging affirmance of the Second Circuit decision, the Brennan Center’s brief assails a system that “vests de facto judicial appointive power in unaccountable party bosses, thereby creating a fertile source for corruption, decreasing confidence in its courts, impeding the search for excellence, and failing to achieve a genuinely representative judiciary.” See the Brennan Center's website for more information on Lopez Torres v. NYS Board of Elections.
The Brennan Center was supported by a broad and ideologically diverse cross-section of legal, political, academic, and reform organizations and individuals from across the country who filed amicus briefs offering unique perspectives on the operation of New York’s scheme, and supporting affirmance of the Second Circuit’s decision. Eleven briefs were filed on behalf of the following signatories:
Brooklyn District Attorney Charles J. Hynes: “I am persuaded, from my long experience as a prosecutor, voter, citizen, and lawyer that…the problems of corruption in Brooklyn involving Supreme Court judgeships are not attributable to a single corrupt party boss. Rather, as the public record demonstrates, corruption in judicial politics has a long history paralleling the long history of the judicial district convention system,” Hynes wrote. In addition to noting the statewide nature of the problem, Hynes strikingly explains to the Court that the “corruption brought about by the architecture of the Supreme Court nomination system does not end once the judge is tapped by party leaders to serve on the Supreme Court, or when the judge is elected. It often continues, in the form of corruption in the administration of justice.”
John Dunne, former Assistant United States Attorney General for Civil Rights (1990-1993) under President George H.W. Bush and former NY State Senator: “Mr. Dunne’s own experience is illustrative. Despite his record of dedication to the Republican Party and his demonstrated expertise in the area of judicial elections, he has never been put forward as a delegate candidate, even though he had asked repeatedly for the opportunity. Instead, he has been passed over by local bosses in favor of slates of delegates who can be relied upon to rubber stamp the choices of the “leadership.” These slating decisions are unreviewable. If a State Senator with 24 years’ service to his party can be shut out of the nomination process entirely, there is little hope for rank-and-file party members who do not hold elected office.”
Washington Legal Foundation: “If New York were to adopt a law declaring that Supreme Court Justices are to be popularly elected, but only the leaders of the most powerful political party within each judicial district are allowed to vote in that election, the law would surely amount to an unconstitutional abridgement of voting rights.....Based on the detailed (and uncontested) factual findings of the district court, the New York election system has exactly the same effect on voting rights.”
City of New York, the New York State Bar Association, Association of the Bar of the City of New York, and the Fund for Modern Courts: “As a policy matter, the current system results in the worst of all worlds: New York State effectively has an appointive system in the guise of an electoral system, but an appointive system of the worst kind – a system in which judges are appointed by party leaders who are unaccountable to the public and who base their choices on political loyalty and party credentials, rather than on professional judicial qualifications.”
New York County Lawyers Association: “While NYCLA prefers a merit-based appointment system for selecting New York Supreme Court Justices, it is imperative that the current, unconstitutional convention system for selecting Supreme Court Justices not be permitted to continue. The convention system is neither democratic, nor transparent. NYCLA therefore urges this Court to affirm the judgment of the United States Court of Appeals for the Second Circuit so that public confidence in the judiciary, which is a cornerstone of a free society, can be restored.”
Asian American Legal Defense and Education Fund, the Puerto Rican Legal Defense and Education Fund, the Hispanic National Bar Association, the Puerto Rican Bar Association, the Latino Lawyers Association of Queens County, the Center for Law and Social Justice at Medgar Evers College, the Amistad Black Bar Association of Long Island, and the Rochester Black Bar Association: “Minorities seeking to become supreme court justices in New York are not served by a closed, back-door system built on cronyism and political favors. No diverse, fair system can be built by such means. As a blue-ribbon task force on diversity in the judiciary found fifteen years ago, opening the system is “essential to improving diversity on the bench.”
Hon. Ed Koch: “New York’s convention system for electing Supreme Court Justices has gone largely unchanged for the forty-plus years that I have been familiar with it. The undemocratic boss run system that I observed in the 1960’s appears to operate no differently today than it did back then,” Koch wrote the court. He added, “Justices of the Supreme Court in New York are not elected, even though their names are on the ballot. They are selected.”
American Civil Liberties Union and New York Civil Liberties Union: "[H]aving chosen to elect Justices of its State Supreme Court, New York is obligated by the federal Constitution to provide for a fair and accessible electoral process. This it has not done."
Thomas Mann, Norman Ornstein, the Reform Institute and the Campaign Legal Center: “Although New York’s judicial selection scheme genuflects at the altar of democracy, it prays to a very different god: patronage.”
“By effectively lodging the power to control the nomination of state Supreme Court Justices in local political party leaders, New York’s mandated system makes state Supreme Court Justices—and many below them on the judicial ladder—beholden to local party officials. The judges, their law clerks, and other judicial employees become mere patronage spoils.”
Former New York Judges and the American Judicature Society: “The current convention system undermines rather than enhances public confidence in the judiciary.”
“The current convention system thus fails—at the crucial juncture when the nomination is being bestowed—to provide constitutionally required assurances to the public of the nominees’ integrity, competence, impartiality, and quality, and of the integrity of the selection process itself.”
Prominent Constitutional and Election Law Professors: “Insofar as elections promote vibrant political parties, New York State’s regime usurps the autonomy of political parties to structure decisionmaking for themselves. In all, a worse system for electing judges is difficult to fathom.”