ALBANY — Four candidates were on the ballot for state Supreme Court judgeships on Long Island in Tuesday's election. But voters had no real choice.
That's because there were four open seats, and the candidates to fill them had been chosen in August by leaders and delegates of both major parties during judicial conventions.
Voters also didn't have a choice in Nassau County judge races for County Court, the 2nd and 4th district judgeships, and for Family Court. All seven candidates were cross-endorsed by the Democratic, Republican and Conservative parties.
“Party leaders have figured out a way to control the process themselves in a way that is formally consistent with the law, but which is a complete contravention of the spirit of the law,” said James Gardner, a distinguished professor of law and political scientist at the University of Buffalo School of Law.
Critics say the selection of judges and cross-endorsements by parties empower political leaders to award plum positions to political hacks who are potentially beholden to the party leaders while on the bench. Even a former U.S. Supreme Court justice once called the process “stupid.”
“The cross-endorsement practice is layered on top of the anti-democratic judicial conventions,” said James Sample, a law professor at Hofstra University who researches judicial elections and constitutional law. “In combination, the system produces all the decorative trappings of elections, but none of the substance.”
Party leaders, however, say the century-old system of choosing judges by party delegates at judicial conventions instead of traditional primaries works.
They say their system puts qualified, nonpartisan judges on the bench and takes the politics out of a traditional primary or contested general election for judges who are supposed to be impartial and nonpartisan on the bench.
“The Democrats and the Republicans got together and decided to depoliticize the bench and agreed to make it even,” said Jay Jacobs, state and Nassau County Democratic chairman.
Here’s how it worked for the state Supreme Court judgeship in the 10th Judicial District that covers Nassau and Suffolk counties:
Four candidates were on the ballot for the posts that carry 14-year terms and an annual salary of $210,900. Two of the candidates, Gary M. Carlton and Christopher McGrath, were running on the Republican, Conservative and Democratic lines. The other two Republican-endorsed candidates — John Andrews and Alison Napolitano — had no Democratic challenger.
The leading vote-getters were the two cross-endorsed candidates: Carlton, an enrolled Democrat; and McGrath, an enrolled Republican. They each received 30% of the vote. Andrews, an enrolled Republican, and Napolitano, an enrolled Conservative, each received 20% of the vote.
A lot of voters didn't vote for any of the judges.
Overall, about 37% of voters in Suffolk who voted in the county executive race at the top of the ballot didn’t vote for one of the state judges.
In Nassau, there was no race similar to county executive to make a comparison, but unofficial results show at least 25% of voters who cast ballots didn't choose a judge.
Researchers cite many reasons for the falloff of voting for judges, including that some voters may reject the idea of cross-endorsements and the lack of choices. Other possible reasons include that most voters don’t know the candidates or that some voters don’t understand the idea of voting for two to four candidates for the same court.
“It’s terrible,” Gardner said of the process.
“The argument against it sounds good, but it isn’t,” Jacobs said.
Jacobs noted that under state judicial ethics and campaign financing laws, candidates for judgeships are restrained from traditional campaigning on issues to avoid damaging public confidence in the impartiality of the legal system. Jacobs also notes that few voters pay attention to judicial races and that the parties only endorse candidates found to be qualified by the local bar association.
Jacobs said Democrats held just 20% of judgeships in Nassau County in 2001. Candidates then often won judgeships simply because they were endorsed by the party that had the strongest candidate at the top of their ticket, such as for president or county executive. Jacobs said the split is now about 50-50.
Political parties also benefit. Under this selection system, each party avoids the cost of a competitive race that might not provide them with an equal result and could result in a loss for a high-profile post.
“In truth, you end up with a nonpartisan selection for judges who do pretty well,” Jacobs said. “And that’s why we’re sticking to it.”
He called cross-endorsements a bipartisan win for voters. Campaign finance records also show judicial campaigns collect mostly small contributions from a few donors other than from the candidate and his or her relatives.
“People always say, ‘Why can’t the parties agree?’ Well, here is something we’ve done that way and now they are complaining,” Jacobs said.
Suffolk County Republican Chairman Jesse Garcia also rejected criticism of the selection system. He said the process is an effective way to create a nonpartisan, qualified and independent judiciary.
“There are benefits to a truly independent judiciary, so politics is taken out of it,” Garcia said. He said candidates endorsed by parties are deemed qualified by local bar associations and approved by party screening committees.
“We put together the best minds, whether Republican or Democrat, and that’s how I proceed,” Garcia said.
New York’s State Legislature moved to using party leaders to choose judge candidates in 1921, arguing that allowing voters to choose judges in primaries could be manipulated by wealthy or well-financed demagogues.
Other states use various methods, including appointments by governors choosing from a list submitted by nominating commissions with approval by legislatures, and later “retention votes” by voters, or independent selection commissions.
Sample said voters in other states can hold governors accountable for judges they appoint, but voters can’t hold party leaders accountable. He said challengers not chosen by party leaders are left the unlikely paths of write-in campaigns or petitioning onto the ballot.
New York’s judicial selection system once was challenged in the nation’s highest court.
In 2008, the U.S. Supreme Court took up the case of Margarita Lopez Torres. She said that after she was elected as judge to the civil court for Manhattan, party leaders who endorsed her demanded that she make patronage hires. She refused and said that was the reason party leaders opposed her in three subsequent elections. Her case was brought by the Brennan Center for Justice at New York University Law, and Sample was one of the center’s lawyers on the case.
In 2009, the U.S. Supreme Court overturned two lower courts that ruled in favor of Lopez Torres, but not until justices criticized the judicial selection system.
Justice John Paul Stevens emphasized the court wasn’t endorsing New York’s system, which a lower court said had “glaring deficiencies.”
Stevens then quoted former Justice Thurgood Marshall: “The Constitution does not prohibit legislatures from enacting stupid laws.”
Assemb. Robert Carroll (D-Brooklyn) sponsors a bill that would move the state to a merit system and end the selection of judges and cross-endorsements by party leaders. The proposed constitutional amendment would require governors to choose from a narrow list of approved candidates submitted by a nominating committee. The bill that would amend the state constitution has no Senate sponsor and hasn’t moved from committee since January. Eleven similar bills have failed to gain passage since 1997.
The political opposition to reforming this power of party leaders frustrates researchers.
“Absolutely, we have some good justices in New York,” said Gardner. “But it’s in spite of the system, not because of it.”