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Long IslandColumnistsDan Janison

How reform calls can fail in New York

A seemingly endless string of criminal cases against New York State lawmakers has spurred a seemingly endless series of calls for reforms.

The proposals vary. Some would force elected officials to disclose more personal financial details. Others would shake up campaign finance rules. Still others would make lawmakers full-time officials or term-limit their leaders.

Given these continued shouts for change, it may be instructive to recall just how completely reform efforts can fail in New York.

Seven and a half years ago, reformers appeared on the verge of dramatically altering the way state Supreme Court judges are elected -- a process controlled then as now by party bosses.

Not only did the reform bid fizzle, the politically powerful made sure it vaporized.

Margarita Lopez Torres, a Brooklyn Democrat, was elected to the civil court in the early 1990s. But by most accounts she lost support from back-to-back party chairmen Clarence Norman and Vito Lopez -- because, she said, of her refusal to hire patronage picks. When she tried to run for state Supreme Court, she ran instead into obstacles.

In New York, the parties pick their judicial nominees for state Supreme Court through an opaque and byzantine process that involves a delegate primary, a judicial nominating convention and a general election.

Running as an insurgent for judge is therefore more difficult than it would be for other posts, where someone can mount a direct challenge in a primary.

In Brooklyn, as in other places, one party's nomination becomes tantamount to election. And rebels against the clubhouse are most assured of losing.

Lopez Torres, joined by Common Cause and other public interest groups, sued in federal court. They said the nomination system deprived voters and candidates of their rights of access to the ballot and to primaries.

They succeeded both in the District Court for the Eastern District and in the Second Circuit Court of Appeals. Bar associations, the Brennan Center for Justice, and the New York City corporation counsel called for the State Legislature to act. It did not.

Then, the state Board of Elections -- a body run in tandem by the major parties -- appealed those federal rulings to the U.S. Supreme Court. And in January 2008, the high court decided New York's system did not violate the constitution as claimed.

"Party conventions, with their attendant 'smoke filled rooms' and domination by party leaders, have long been an accepted manner of selecting party candidates," stated an opinion by Justice Antonin Scalia.

A concurring opinion, from Justice John Paul Stevens, underscored "the distinction between constitutionality and wise policy" -- and even echoed a lower-court finding in how it described "glaring deficiencies" in the nomination system. Stevens quoted the late Justice Thurgood Marshall: "The Constitution does not prohibit legislatures from enacting stupid laws."

An epilogue: Norman and Lopez were forced out in separate scandals, Lopez-Torres now serves on the Surrogate's Court, and judges are nominated as before.

Susan Lerner, executive director of Common Cause, said Tuesday: "It was called a stupid system by the Supreme Court.

"You think that would move our legislature? No."


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