Local attorneys are giving mixed reviews to Gov. Eliot Spitzer’s proposal to move New York to a system of appointed judges instead of the current method of elections.
Spitzer’s call last week to amend the state constitution to allow the appointment of state judges and to restructure the courts would alter a system the governor called ‘one of the most convoluted, politicized, outdated and expensive in the nation. ‘
A.Thomas Levin, a partner in the Garden City law form Meyer, Suozzi, English & Klein, and a former president of the New York State Bar Association, welcomed the proposals.
Levin is a member of the committee that works on judicial reorganization and selection issues for the bar, a strong supporter of appointment for judges. The current system of electing judges puts too much power in the hands of political party bosses, Levin said.
‘The problem is that the political process is very limiting in who ever has a chance to get on the bench,’ he said. The system for getting on the ballot for state Supreme Court – New York’s general trial level court – has been to be nominated by a political party’s judicial nominating convention. It’s not possible to petition onto the ballot, as it is for other judicial positions in the state.
That requires judicial candidates to be politically active, Levin said, a concern that wouldn’t be true with appointments.
‘There’s nothing that’s apolitical, but it’s less political,’ Levin said.
‘And we think merit would get more weight. ‘
The current system was challenged in a case before U.S. District Court Judge John Gleeson, who ruled that local majority party leaders effectively pick State Supreme Court judges, and ordered the state to revamp its selection process.
That ruling was upheld on appeal. In February, the U.S. Supreme Court agreed to review the matter. But that court won’t take it up until its next term begins in October, meaning a ruling could still be a year away.
Spitzer’s proposed constitutional amendments will take time as well. To take effect, the amendments must be passed by two separately elected Legislatures, then approved by the state’s voters in a referendum. The earliest that could happen would be in 2009. Spitzer has proposed interim changes to increase ballot access and voter education that could be accomplished without amending the state’s constitution.
Spitzer described his plan as ‘a merit-based appointment system,’ words that rankle Thomas J. McNamara of Certilman Balin Adler & Hyman, LLP. The description implies that appointments would be based only on merit, and that elections do not turn on that question, propositions McNamara said he doubts.
‘With the current system, we have a lot of fine judges who’ve been elected. The system is not as broken as some people would like to say,’ he said. ‘There are reasons why the current system is not perfect, but this may not be the proper solution. ‘
Attorney Michael G. Zapson argues that the proposed changes would not remove politics from the system. He envisions a governor relying on elected local officials to make recommendations. ‘I don’t think it will remove politics from the system. ‘
Spitzer’s plan calls for establishing screening committees to recommend qualified people for judicial nominations. But Zapson, with Davidoff Malito & Hutcher LLP, argued such a scheme puts decisions in the hands of just a few people. Zapson, who was chairman of the judiciary committee when he was in the Nassau legislature, would prefer to see direct, open elections for judges, and called the party conventions for Supreme Court ‘archaic. ‘
‘The main difference [under Spitzer’s plan] is the executive department would have more say in who becomes a judge, not voters,’ McNamara said.
While acknowledging that screening committees could be ‘distorted,’ Jerry Kremer, an LIBN columnist who served in the state Assembly and now lobbies on behalf of clients with Ruskin Moscou Faltischek in Uniondale, sees potential benefits.
‘If the process is a fair one and the group is objective, then it can work very well,’ Kremer said.
He said when the dust eventually settles he expects to see some form of appointment.
Spitzer also proposed restructuring the state’s court system to consolidate the major trial courts, and to eliminate limits restricting the number of state Supreme Court judges.
He would also create an additional appellate division to relieve the burden of the Second Department. The department, which includes Nassau and Suffolk counties, has about half of the state’s population.