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Koch: Judges must be free of political pressure

Former Mayor Ed Koch wrote a weekly column for New York Newsday from 1999-2000. This column first appeared in December 2000.

ON THE same day that the U.S. Supreme Court stopped the manual recount in Florida, I gave the keynote speech at a seminar on how to become a judge. Sponsored by the Association of the Bar of the City of New York, the seminar drew an audience of 200 lawyers interested in careers on the bench.\

I reminded the audience that the mayor has the power to appoint the Criminal and Family Court judges in New York City. These appointments are not subject to confirmation by the City Council. Before I was elected mayor in 1978, the city did not have a merit judicial selection system, which in years past sometimes resulted in judgeships going to unqualified political cronies.

In my 12 years as mayor, I appointed more than 140 judges. To ensure that the city had the best judges possible, I created by executive order a merit-based selection system. Under the executive order, the mayor appoints the chair of the Mayor's Committee on the Judiciary and 12 of its members. The presiding justices of the First and Second Departments of the Appellate Division each appoint six members and the deans of various local law schools appoint two members on a rotating basis.

The Mayor's Committee and the City Bar Association are responsible for selecting the candidates for each vacancy and presenting three choices to the mayor. After interviewing them, the mayor selects one.

The protocols included a commitment by the mayor, without exception, to reappoint judges to succeeding 10-year terms if both committees recommended they be reappointed. If either committee did not recommend reappointment, the mayor would not reappoint. Neither Mayor David Dinkins nor I ever violated these protocols.

Mayor Rudolph Giuliani changed my executive order and protocols in 1994. In December, 1995, Giuliani declined to reappoint two sitting Criminal Court judges recommended for reappointment by both committees. When Dinkins and I criticized the changes, Giuliani called us hypocrites, demeaning our integrity. Giuliani denounced Chief Judge Judith Kaye of the Court of Appeals, who urged him not to violate the protocol concerning reappointment. Both Francis Murphy, presiding judge of the First Department, and Barbara Robinson, president of the City Bar Association, criticized Giuliani's actions.

Giuliani takes the position that the committees' recommendations on appointments and reappointments are advisory and he is not bound by them. He has since declined to reappoint for full terms several judges in the Bronx Family Court, one a supervisory judge who resigned in disgust. He has also appointed at least one judge who did not receive the recommendation of both committees.

As we have witnessed over the past several weeks in Florida and Washington, D.C., the judiciary is a co-equal branch of government and must have independence. The founding fathers granted federal judges independence by giving them lifetime appointments. I tried to give the Criminal and Family Court judges in New York City independence so that, regardless of how I felt about judges' decisions or if I had publicly criticized them, as mayors are wont to do, judges knew their reappointments would never be in danger provided both committees concluded they deserved reappointment.

Judges usually plan to serve out their professional lives as judges, at tremendous financial sacrifice. Family and Criminal Court judges are paid less than first-year associates at top law firms. Judges have mortgages and college tuition to pay for their children. Their professional careers as lawyers ended when they became judges, and it is difficult to resume a career 10 years later.

If judges fear the mayor's anger when making a decision that affects the city, the mayor's attitude might influence their decisions. Many will recall Giuliani's anger when Federal Judge Nina Gershon ruled against his decision to cut off funds to the Brooklyn Museum. Giuliani referred to Gershon's decision as "the usual knee-jerk reaction of some judges."

Gershon could not be intimidated. Her job is for life. Suppose the case had come before her husband, a Criminal Court judge who is an acting New York County Supreme Court Justice and whose Criminal Court appointment at the time was up in a few months?

When I concluded my remarks, the president of the City Bar Association, Evan Davis, said: "We will ask each mayoral candidate if they will restore your executive order and protocol."