Judicial elections a highly flawed process

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Dan Janison Melville. N.Y. Tuesday January 26, 2010. Daniel Janison,

Dan Janison has been a reporter at Newsday since 1997, initially as a staff writer for the New ...

Even in the insider world of New York judicial elections, State Supreme Court races reign supreme as the most inside of them all.

Delegates to the judicial conventions of the major parties met in hotels in Hauppauge and Plainview Thursday night -- the prescribed routine all over the state -- to pick nominees for six open Supreme Court seats.

These events are generally quite scripted. There are no primary contests for these $160,000-a-year positions. The party-picked nominees' names automatically go on the November ballot.

Independent candidacies are possible, but legal experts have long described these as highly daunting.

In counties dominated by single parties, such as most of New York City, nomination without primaries becomes tantamount to appointment. In places with greater partisan competition, such as Suffolk and Nassau, cross-endorsement deals involving major and minor parties are common.

None of this changes despite years of high-minded calls for reform and proposed remedies. So the likes of Assemb. Vito Lopez, recently ousted as Brooklyn Democratic chairman, or his convicted predecessor, ex-Assemb. Clarence Norman, can pick your judges.

Nearly five years ago, a landmark challenge to New York's selection process reached the Supreme Court -- the big one, in Washington -- for arguments. Early federal decisions struck down our judge-picking method. But the nation's highest tribunal ruled that the closed nomination process was constitutional, if undesirable.

In fact, in their January 2008 opinion concurring with the court's majority, Justices David Souter and John Paul Stevens went so far as to quote the late Justice Thurgood Marshall: "The Constitution does not prohibit legislatures from enacting stupid laws."

At least these matters can still arouse passion among lawyer-leaders with the power to pick.

One year ago Saturday, Nassau Republican chairman Joseph Mondello, by his own account, fractured a finger bone in his right hand by punching a locker -- during a phone argument with Suffolk Conservative chairman Edward Walsh over terms of a court endorsement agreement. The clash delayed the GOP judicial convention in Hicksville.

The Fund for Modern Courts, a nonpartisan nonprofit reform organization created in the 1950s, has long called for "merit" selection of these judges, by which elections would be ditched in favor of what they define as a process based on qualification. The state's highest court, the Court of Appeals, had elections until the 1970s, when the current process involving qualification commissions, gubernatorial appointment, and Senate confirmation took hold.

The experts say this would take a constitutional convention -- which in recent decades has been like waiting for the crack of doom. So for the time being, the group's chairman, Milton Williams, has argued in public forums for changes in election law that could include an independent commission in each of the state's dozen judicial districts, to recommend a limited number of the most qualified candidates to be considered by judicial delegates.

For better or worse, that alternative might fall between the choice of party-insider elections or no elections at all. If you're determined to look on the bright side, consider that good choices sometimes come out of flawed processes.

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