Questioning Conventional Behavior
On Nov. 3, 1992, Margarita Lopez Torres seemed well on the way to realizing her goal of becoming a New York State Supreme Court judge.
Lopez Torres, a 1979 graduate of Rutgers University law school who had spent 13 years as a New York City and legal services lawyer, had just been elected a civil court judge in Brooklyn. And the path to a seat on the Supreme Court, the state’s trial court of general jurisdiction, typically includes a stint in civil court.
Within a day of her election to the civil court bench, however, Lopez Torres may have ruined her chances of ever becoming a Supreme Court judge, according to court opinions.
It began when Lopez Torres resisted pressure from powerful Democratic Party officials in Brooklyn—who had supported her bid for a seat on the civil court—to hire as her law clerk a young lawyer and party operative whom she regarded as unqualified.
Party officials chastised her afterward for not hiring the lawyer they had referred to her, according to the opinions, and scolded her for not understanding how “the process” worked. They also told her to fire the law clerk she had hired and replace him with their man. And when she refused, they told her she would never receive the party’s nomination for a Supreme Court judgeship, which in Brooklyn is tantamount to winning an election. Three years later, Lopez Torres was given a chance to redeem herself, the opinions say. It came when a local party leader told her he would get her nominated for an upcoming vacancy on the Supreme Court that had been “earmarked for a ‘Latino.’ ” The catch was that she would have to fire her law clerk and hire the party boss’s daughter, a recent law school graduate, to replace him.
Lopez Torres once again re fused to do the party leader’s bidding. From then on, party officials not only blocked her attempts to become a Supreme Court judge, the opinions conclude, but actively worked against her in 2002, when she was re elected to the civil court, and again in 2006, when she was elected a surrogate court judge.
By then Lopez Torres had had enough, and she became the lead plaintiff in a 2004 federal suit challenging the constitutionality of the state’s unique some would say bizarre way of picking trial court judges of general jurisdiction.
The case wound its way through the federal courts, and the U.S. Supreme Court has agreed to hear the case in the fall.
New York is one of 39 states that elect at least some of their judges. But it is the only state that chooses candidates for trial court judges of general jurisdiction through a system of nominating conventions controlled by the two major political parties. The convention system, which has been in place since 1921, not only distinguishes New York from every other state but also distinguishes the office of Supreme Court judge from every other elective judicial office in New York. Other judge candidates are chosen in primary elections.
Only Supreme Court judges are selected through judicial nominating conventions. Lopez Torres declined to comment on her quest to become a state Supreme Court judge, citing the pend ing litigation.
POWER TO THE PARTY
More than a year ago, U.S. District Judge John Gleeson of Brooklyn ruled that the state’s supreme court selection process was unconstitutional because it gives local party leaders, not the people, the power to decide who becomes a judge—and when.
In a 77-page decision, Gleeson said the plaintiffs had demonstrated convincingly that the system deprives the voters of any meaningful role in the selection process.
“The result is an opaque, undemocratic selection procedure that violates the rights of the voters and the rights of the candidates who lack the backing of the local party leaders,” he wrote. Lopez Torres v. New York State Board of Elections, 411 F. Supp. 2d 212 (2006). Gleeson’s order recounts at length the details of Lopez Torres’ long and tortured efforts to become a supreme court judge in Brooklyn, an experience that he says serves as a microcosm of the way the selection process operates.
“The path to the office of supreme court justice runs through the county leader of the major party that dominates in that part of New York state,” he wrote.
“With out his or her support, neither superior qualifications nor widespread support among registered voters matters.” That, the judge said, was clearly the case with Lopez Torres.
In his decision, Gleeson ordered state lawmakers to come up with a new way of selecting supreme court judges. Until they do, he said, those positions must be filled the way most other judgeships in the state are through primary elections.
Gleeson’s ruling was affirmed last August by the 2nd U.S. Circuit Court of Appeals at New York City, 462 F.3d 161.
The state legislature, meanwhile, is considering its options, which to date have included changing the convention system to make it more open and democratic, adopting an elective system, and enacting an appointive process based on merit.
State bar officials view the moment as a historic opportunity to do away with judicial elections altogether and adopt a merit selection process for filling judgeships, an approach they have been advocating since the early 1970s. Under merit selection, prospective judges are screened by a committee of lawyers and laypeople that chooses a short list of presumably qualified candidates from which the governor must fill a vacancy.
“We want to take the political clubhouse out of the courthouse and start selecting our judges solely on merit, not on the basis of their political credentials or who they know or what serves the interests of party leaders,” says New York State Bar Association President Mark H. Alcott.
MIXED FEELINGS ABOUT MERIT
But several minority bar associations have expressed concern over the possible adoption of an appointive process, which they fear will be less inclusive of women and minority candidates than an elective judiciary has been.
And Lopez Torres, in testimony late last year before the state assembly’s standing committee on the judiciary, said she wasn’t convinced that an appointive process necessarily guarantees a more qualified, more diverse or less politicized judiciary than an elective one.
“The existence of an elective process, however imperfect, at least provides a possible route for those who are not favored by a controlling political establishment,” she told the committee.
Even its proponents recognize that a merit selection system, which would require a constitutional amendment passed by two successive sessions of the legislature and then ratification by the voters, will take at least three years to implement.
That may explain why support appeared to be growing in early February for a possible interim solution that essentially would keep the old convention nominating system but allow judicial hopefuls who fail to receive the party’s nomination another way to get on the ballot.
Under the proposals being floated in the legislature, those candidates could do so either by polling a certain percentage of the vote of delegates at the convention or by collecting on a petition a certain number of signatures from registered voters.
Frederick A.O. Schwarz Jr. is senior counsel at the Brennan Center for Justice at New York University School of Law and lead counsel for the plaintiffs in Lopez Torres. He says there are two pos sible short term solutions to the chief constitutional problem presented by the convention system, which is the exclusion of the voters from any meaningful participation in the nominating process.
One solution would be to hold primary elections, which are used for every other judicial office in the state and in most other states with elective judiciaries.
Another is a convention system that allows viable candidates who are not the party’s nominee a place on the ballot.
If the legislature does nothing, Schwarz says, Gleeson has already decreed that Supreme Court judges will be chosen through primary elections. But if the legislature wants to do something that is constitutionally defensible, he says, it should consider the second option.
“This solution would give voters and candidates a real voice and a genuine opportunity to participate, while involving political parties in a way that is familiar to all participants in our state,” Schwarz says.