Cross-endorsement of judges criticized for removing voters' choice
Jay Jacobs speaks on Monday, Jan. 14, 2019 in Glen Cove. Credit: Howard Schnapp
ALBANY — Long Islanders pondered ballots last week that asked them to "vote for 8" judges in the 10th Judicial District, which handles the most serious criminal and civil trials in Nassau and Suffolk counties. The ballot contained only eight candidates.
That is because each was cross-endorsed by the Democratic, Republican and Conservative parties under an agreement that party leaders struck months before. So voters had no impact on the outcome.
Statewide, voters in five of 12 Supreme Court judicial districts statewide also saw ballots in which candidates were preordained to win because of deals among political party bosses.
"It’s deplorable," said James Gardner, a distinguished professor at the University at Buffalo School of Law who researches elections. "It’s collusive behavior by political parties that undermines democratic choice. It’s a complete perversion of the process."
Supporters of the system say cross-endorsements assure that solid candidates are presented to voters, who generally have little information on which to base their vote, and that no one party controls the courts.
"Supreme Court candidates are not permitted to really campaign on any issues, so the public doesn’t really have a particular choice based upon issues like you would have in a normal election," said Jay Jacobs, long time state and Nassau County Democratic chairman. "The outcome was determined not by the individual, but by the ups and downs of that particular party’s success in a given year."
But critics such as Garner said a judicial election "is not a referendum on merit. You have to be a party loyalist and there is something to be said for that, up to a point … Merit should be a very high consideration and I don’t think partisan elections have ever been a way to produce meritorious candidates for the bench."
Many Long Island voters seemed unenthused to vote on the predetermined slate of winners on Tuesday.
About 27,000 fewer voters in Nassau County voted for judicial candidates than voted in the races for county executive of district attorney — a 10% difference. In Suffolk County, 34,628 fewer voters cast ballots for the judicial candidates than voted in the district attorney race — nearly a 13% difference.
Told about the number of voters who didn't vote for the judges, Gardner said, "I didn't know that. But it shows I'm in good company. I will not, and have not, ever cast a vote for a candidate who is cross-endorsed."
There are no primaries in judicial races for Supreme Court in New York and no traditional campaigning because of strict ethics rules that prohibit a candidate from taking positions that may reveal biases on issues that could come before him or her on the bench. Under law, once a judge is seated on the bench, he or she can’t engage in politics, even though political activity is often how they got the seat, researchers said.
"Merit is rarely, if ever, the primary consideration," said Vincent Bonventre, a professor at Albany Law School who has long studied New York’s judicial system. "The official line is that this avoids judges having to engage in unseemly partisan campaigns. On the other hand, of course, it robs the electorate of an actual choice and usually this cross endorsement is the result of political parties making a deal."
Much is at stake. Supreme Court justices are paid $210,900 a year and serve 14-year terms in what is usually a coveted capstone for careers that mixed law and local politics. The justices also have the power to fill jobs in the courts and award guardianships and other lucrative duties to attorneys in what critics call one of the largest remaining patronage systems for county political parties.
Yet as muddled in politics as judicial elections can be, even critics agree the system can be still produce some good justices.
"There are a lot of very good judges sitting on the bench in New York," Gardner said. "But if they are good judges, it’s in spite of the system … there is the informal, unwritten requirement that you be a party hack."
Supporters of the system note that cross-endorsed candidates are usually found "qualified" to become a judge — the basic requirement is a law degree — by their county bar association.
"Both parties were looking for a way to ensure that we have good judges," Jacobs said, "and not find ourselves in a position of losing good judges based not on the ability of those judges … I think the court system is appreciative of it and we have some very good quality judges ever since."
Still, cross-endorsing gives extraordinary control to a few party leaders to choose judges who will weigh issues involving prison sentences in felony cases and huge awards in civil cases. In many cases, candidates who are cross-endorsed are former aides and counsels to local elected officials and frequent campaign contributors, the researchers said.
The state doesn't use elections for judges for the Court of Appeals, its highest court. A lengthy screening process is conducted by a panel of experts, then a list of the best qualified candidates is sent to the governor for his or her choice. But that process, too, has its critics because of the way politics can sway a governor's choice.
"Whether we are talking about judicial elections or judicial appointments," Bonventre said, "you really have to be naive to think that whoever is chosen … happens to be the highest-quality lawyer or judge."
The politically charged issue isn't the subject of any major legislation in Albany.
"It’s still a discussion in the legal profession that the way we select judges isn’t best and it can lead to corruption," said Sen. Diane Savino (D-Staten Island).
"There are better ways to do this," Savino said. "But it’s such a quagmire. It’s tough because it’s the last bastion of patronage."
Some other states and countries avoid direct elections of judges in an effort to remove politics from the critical selections.
The Missouri Nonpartisan Court Plan was created after decades of electing judges that often created a corrupt patronage mill. The Missouri Plan uses a commission of citizens, attorneys and a judge to select three candidates to an open judgeship and the governor must select one from the list. After the judge has served for at least a year, a “retention vote” is held at the next election in which a majority of voters decides if that judge should continue in office. The judge doesn’t face a competitor in the retention vote.
In Europe, many countries including France seek to avoid political influence by recruiting potential judges who must attend a national school to prepare judges and pass Civil Service exams.
Michael Gormley has worked for Newsday since 2013, covering state government, politics and issues. He has covered Albany since 2001.
